F.  L  Liiidley 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


F.  E.  Lindle^ 


A  SELECTION  OF  CASES 


ON 


THE    LAW   OF    TRUSTS 


WITH  NOTES  AND  CITATIONS 


Second  Edition 


BY 


JAMES  BARR  AMES 

BU88EY  PROFESSOR  OF   LAW   IX   HARVARD   UNIVERSITY 


Vol.  I. 


CAMBRIDGE: 

HARVARD  LAW  REVIEW  I'UBLISIIING   ASSOCIATION. 

1893. 


Copyright^  189S. 
By  Jau£s  Barb  Ames. 


a^3 


(arte  BitoetiSibe  pwj^ 

PRINTED  BY  H.  O.  HOUGHTON  6  CO. 

CAMBRIDGE,  MASS. 

U.S.  A. 


CONTENTS. 

CHAPTER  I. 

PAOS 

The  Nature  and  Requisites  of  a  Trust 1 

Section  I. 
A  Trust  distinguished  from  a  Debt 1 

Section  II. 
A  Trust  distinguished  from  a  Bailment 52 

Section  III. 
A  Trust  distinguished  from  an  Equitable  Charge 55 

Section  IV. 
A  Trust  of  a  Chose  in  Action  distinguished  from  an  Assignment  .    .    .    ,      59 

Section  V. 
A  Trust  distinguished  from  an  Executorship 70 

Section  VI, 
The  Language  necessary  to  the  Creation  of  a  Trust 77 

Section  VII. 
Consideration 107 

Section  VIII. 
The  Statute  of  Frauds 17G 

Section  IX. 
The  Statute  of  Wills 180 

Section  X. 
The  Subject-lVIatter  of  Trust 191 

Section  XI. 
The  Cestui  que  Trust 195 

Section  XII. 
The  Trustee 215 

Section  XIII, 
Notice  to  the  Cestui  que  Trust 232 


CL75«1 


iv  CONTEXTS. 

CHAPTER   II. 
The  Nature  of  the  Cestui  quk  Trust's  Interest 235 

Section  I. 

His  Cliilm  is  purely  Equitable,  except  when  Account  would  lie  at  Common 

Law 235 

Section  II. 

Cestui  que  Trust  is  a  Claimant  against  the  Trustee  —  not  the  Owner  of  the 

Trust-res 244 

(a)  His  Claim  is  enforceable  regardless  of  the  Situs  of  the  Trustrres      .     244 

(b)  Cestui  que  Trust  cannot  proceed  directly  against  a  Stranger  either 

at  Law  or  in  Equity 251 

(c)  A  Cestui  que  Trust  of  an  Obligation  cannot  discharge  the  Obligor  .  2G6 

(d)  When  Cestui  que  Trust's  Interest  in  the  Trust-res  is  forfeited  by  the 
Trustee's  Laches 271 

(e)  Cestui  que  Trust  cannot  vote  as  Owner  of  the  Res 275 

(f)  The  Burdens  incident  to  Ownership  fall  upon  the  Trustee,  and  not 

upon  the  Cestui  que  Trust 278 

CHAPTER  III. 
The  Transfer  of  Trust  Property 282 

Section  I. 

By  Act  of  the  Party 282 

(a)  By  Act  of  the  Trustee 282 

(b)  By  Act  of  the  Cestui  que  Trust 322 

Section  II. 

By  Death 345 

(a)  Death  of  the  Trustee 345 

(b)  Death  of  the  Cestui  que  Trust 351 

Section  III. 
By  Forfeiture 367 

Section  TV. 
By  Disseisin 370 

Section  V. 

By  Marriage 374 

(a)  Marriage  of  the  Trustee 374 

[b^]  Marriage  of  the  Cestui  que  Trust — Dower 375 

[b^]  Marriage  of  the  Cestui  que  Trust  —  Curtesy 379 

[b]  Marriage  of  the  Cestui  que  Trust  —  Rights  of  Husband  during  Cov- 
erture      385 

Section  VI. 

By  Bankruptcy 392 

(a)  Bankruptcy  of  the  Trustee 392 

(b)  Bankruptcy  of  the  Cestui  que  Trust 394 


CONTENTS.  V 

Section  VII. 

By  Act  of  Creditors o    ....    406 

(a)  Creditors  of  Trustee 406 

(b)  Creditors  of  Cestui  que  Trust 433 

CHAPTER  IV. 
Extinguishment  of  a  Trust 445 

CHAPTER  V. 
The  Duties  of  a  Trustee 449 

Section  I. 
To  convey  the  Trust-res  as  tbe  Cestui  que  Trust  directs 449 

Section  II. 
The  Duty  to  put  Cestui  que  Trust  in  Possession  of  the  Trust-res  ....    465 

Section  III. 
The  Duty  to  give  Information  in  regard  to  the  Trust-res 468 

Section  IV. 
The  Duty  as  to  Investment  of  Trust  Funds 471 

Section  V. 
Tlie  Duty  of  Custody  of  the  Trust-res 502 

Section  VI. 
The  Duty  not  to  delegate  the  Trust  to  Another 508 


TABLE  OF  CASES 


Adams  v.  Adams 

Adams,  Broadway  Bank  v. 

Aheame  v.  Aherne 

Aheme,  Ahearne  v. 

Aldam,  Busk  v. 

Allen  V.  Impett 

Anonymous,  Bellewe,  11 
Br.  Ab. 
Dalison,  38 
RoUe's  Ab. 
3Sw. 

(Y.  B.  12  &  13  Ed.  m.) 
(Y.  B.  5  Ed.  IV.) 
(Y.  B.  .5  Ed.  IV.) 
(Y.  B.  8  Ed.  IV.) 
(Y.  B.  4  Ed.  IV.) 
(Y.  B.  6  Hen.  IV.) 
(Y.  B.  8  Hen.  VI.) 
(Y.  B.  15  Hen.  VII.) 
(Y.  B.  14  Hen.  VIII.) 

Appleton  V.  Rowley 

ArgTiello,  In  re 

Arnould  v.  Grinstead 

Ashley  I'.  Denton 

Att'y-Gen.  v.  Hickman 
Hix  V. 

V.  Lauderfield 
Pawlett  V. 

Baddeley  v.  Baddeley 
Bailey  i;.  New  England  Co. 
Baily,  Stephens  v. 
Ball,  Watta  v. 
Barker,  In  re 
Barker's  Trusts,  In  re 
Bamed's  Company,  In  re 
Bamett,  Fortescuo  v. 
Bartlett  v.  Dimond 
Batchelor,  .Juniper  v. 
Bates,  Carstairs  v. 
Bates  V.  Johnson 
Beard  i'.  Beard 
Belchier,  Ex  parte 
Belknap  v.  Belknap 
Bindon,  Swf;f!tiip])le  v. 
Bingh.-irn,  .Miller  v. 
Bingle,  Miiasctt  u. 
Bishop  of  Durham  v.  Morice 
Blake,  l)'Arcy  v. 
Bops,  Kintr  V. 
Bolder,  Wildinp  v. 
Bottomloy  V.  Fairfax 
Brandon  v.  Uohinson 
Breton's  Estate,  In  re 
Breton  v.  Woolven 


227 

Broad,  Ex  parte 

19 

397 

Broadway  Bank  v.  Adams 

397 

104 

Brown  v.  Burdett 

204 

104 

Brown,  Carey  v. 

260 

460 

Brown  v.  Gellatly 

489 

36 

Browne,  Trinity  College  V. 

278 

2(M 

Browne's  Will,  Re 

4.58 

109 

Brunt,  Dodkin  v. 

226 

266 

Buck,  Turner  v. 

450 

122 

Bulbeck  v.  Silvester 

49 

508 

Bullock,  In  re 

401 

52 

Burdett,  Brown  v. 

204 

351 

Burgess  v.  Wheate 

356 

352 

Burmester,  Eyre  v. 

306 

345 

Bush,  Jevon  v. 

217 

240 
1 
2 

Busk  V.  Aldam 

460 

Cadogan,  Sloane  v. 

135 

251 

Callard  v.  C^ard 

117 

283 

Campbell,  Stumors  v. 

21 

381 

Campbell's  Trust,  In  re 

220 

482 

Cann  v.  Cann 

481 

488 

Caplen's  Estate,  In  re 

49 

52 

Carey  v.  Brown 

260 

224 

Carpenter  v.  Carpenter 

322 

348 

Carstairs  v.  Bates 

12 

216 

Castle,  Wallace  v. 

25 

367 

Cathorpe,  Ex  parte 

484 

Cave  V.  Cave 

311 

170 

Cave  V.  Mackenzie 

808 

256 

Chion,  Ex  parte 

392 

347 

Churchward,  Hodge  V. 

55 

379 

Claflin  V.  Claflin 

455 

275 

Clark  V.  Clark 

232 

223 

Clark's  Caae 

4 

42 

Clark,  Steele  v. 

44 

136 

Cleveland,  Schwab  w. 

280 

37 

Clockmaker's  Co.,  Sonley  v. 

225 

189 

Coleman,  In  re 

339 

12 

Collier,  Walker  v. 

3 

292 

Colnian  v.  Sarrel 

1,33 

165 

Colvile,  Grey  v. 

433 

516 

Commercial  Bank  j;.  Hamilton  Bank 

15 

842 

Commonwealth  v.  Foster 

23 

379 

Compton's  Case 

370 

389 

Conybeare's  Settlement,  Ex  parte 

222 

201 

Cooke  V.  Crawford 

509 

195 

Cooper- Dean  r\  Steven* 

205 

870 

Copcland,  Lowson  v. 

493 

216 

Com  wall,  I'oultor  v. 

7 

221 

Crawford,  Cooke  v. 

509 

375 

Creditors  of  Cox 

*J8 

394 

171 

Daccombe,  King  v. 

353 

171 

Dale  V.  SoUet 

7 

VIU 


TABLE  OF  CASES. 


Danser  v.  Warwick 
Daiivers,  Weston  v. 
D'Arvy  v.  Blake 
Dai'toii,  Moore  v. 
Heaii.  In  re 
Dearie  v.  lliUl 
Debenhani,  Lane  v. 
De  Bervoir,  Harris  y. 
Dehew.  Saundei-s  v. 
Delbridge,  Kicharda  v. 
Denton,  Ashley  v. 
Dickinson,  App. 
Di«ji;les.  In  re 
Dillon.  Kirkby  v. 
Diinoud,  Bartlett  u. 
Doctor  and  Student 
Dodds  V.  Hills 
Dodkin  v.  Brunt 
Doe  V.  Pegge 
Doily  V.  Sherratt 
Donaldson  t>.  Donaldson 
Downes,  Wasborne  v. 
Drake  v.  Price 
Dring,  Holmes  v. 
Duncan,  Ross  v. 
Dundas  v.  Diitens 
Dutens,  Dundas  v. 

Eames,  Lambe  v. 
East  India  Co.,  Wych  v, 
Eastman,  Giddings  v. 
Edmondson,  Gregory  v. 
Edwards  v.  Jones 
Ellison,  Goodson  y. 
Elsley,  Foster  v. 
Elwin  V.  Williams 
Eustace,  Kildare  v. 
Eyre  v.  Burmester 

Fairfax,  Bottomley  v. 
Fairland  v.  Percy 
Farley  v.  Turner 
Farrington  r.  Lee 
Feleh  v.  Hoop>er 
Field  V.  Field 
Finch,  Worcester  v. 
Flower  v.  !NL'irten 
Fogg  V.  Middleton 
Fortescue  r.  Bamett 
Foster,  Commonwealth  o. 
Foster  v.  Elsley 
Frampton  v.  Gerrard 

Gardner  v.  Rowe 
Gaugain,  Whitworth  v. 
Gaunt,  Spf^ight  v. 
Gellatly,  Brown  v. 
Gerrard,  Frampton  v. 
Gibson  v.  Winter 
Giddings  v.  Eastman 
Giles  V.  Perkins 
Glyn,  Harding  v. 
Good  V.  Lickorish 
Goodright  v.  Wells 
Goodson  V.  ElUssoQ 
Gordon,  Key  v. 
Gott  V.  Nairne 
Graham  v.  King 


« 


186 

Graves  v.  Graves 

102 

840 

Gregory  v.  Edmondson 

95 

370 

Grey  v.  Colvile 

433 

39 

Grinstead,  Arnould  v. 

488 

205 

Grover  v.  Grover 

159 

328 

513 

Hall,  Dearie  v. 

828 

4 

Hanier  v.  Sidway 

83 

289 

Hamilton  Bank,  Commercial  Bank  v. 

15 

130 

Hammond  v.  Messenger 

59 

52 

Harding  v.  Glyn 

78 

478 

Harford,  Worrall  v. 

415 

95 

Harland  v.  Trigg 

79 

439 

Harris  v.  De  Bervoir 

4 

37 

Hattatt's  Trusts,  Be 

221 

107 

Hawkins,  Wynne  v. 

81 

297 

Head  v.  Teynham 

460 

226 

Henderson-Roe  v.  Hitchina 

72 

252 

Henry  v.  Strong 

389 

511 

Hickman,  Att'y-Gen.  v. 

224 

146 

Hills,  Dodds  V. 

297 

322 

Hinze,  Shoemaker  v. 

29 

74 

Hitchins,  Henderson-Roe  V. 

72 

471 

Hix  V.  Att'y-Gen. 

848 

212 

Hodge  V.  Churchward 

55 

443 

Holland  v.  Holland 

236 

443 

Holmes  v.  Dring 

471 

Hooper,  Felch  v. 

246 

85 

Howlett,  Lee  v. 

829 

271 

317 

Impett  V.  Allen 

36 

95 

Ireland,  Mortimer  v. 

508 

140 

451 

Jacquet  v.  Jacquet 

56 

191 

Jenkyns.  M'Fadden  v. 

47 

386 

Jevon  V.  Bush 

217 

244 

Jevon,  Noel  v. 

374 

306 

Johnson,  Bates  v. 

292 

Johnson,  In  re 

426 

375 

Johnson.  Shearman  v. 

426 

423 

Jones,  Edwards  v. 

140 

40 

Jones  V.  Lewis 

502 

6 

Jones,  Lloyd's  Co.  v. 

272 

246 

Jones,  Scott  v. 

70 

505 
370 

125 

Juniper  v.  Batchelor 

189 

Kansas  Co.,  Morgan  v. 

258 

65 

Keighley,  Malim  v. 

88 

136 

Keterich,  Paschall  v. 

2 

23 

Key  V.  Gordon 

6 

191 

Kildare  v.  Eustace 

244 

121 

King's  Att'y  v.  Sands 

354 

King  V.  Boys 

216 

179 

King  V.  Daccombe 

353 

408 

King,  Graham  v. 

515 

>518 

King  V.  Mildmay 

348 

489 

King  V.  Talbot 

472 

121 

Kirkby  v.  Dillon 

439 

267 

. 

317 

Lambe  v.  Eames 

85 

9 

Lane  v.  Debenham 

513 

78 

Lange,  Third  Bank  v. 

318 

401 

Latrobe  v.  Mayor 

278 

445 

Lauderfield,  Att'y-Gen.  v. 

216 

451 

Lee,  Farrington  v. 

6 

6 

Lee  V.  Howlett 

329 

202 

Lee  V.  Wilson 

468 

515 

Lewis,  Jones  v. 

502 

TABLE   OF   CASES. 


IX 


Lickorish,  Good  r. 
Lincoln  r.  Parr 
Lister,  Tidd  i\ 
Lloyd,  Roberts  v, 
Lloyd's  Co.  I".  Jones 
Lookabill,  Stith  v. 
Lord,  Milroy  v. 
Lowson  V.  Copeland 

Mackenzie,  Cave  v. 
Mackersy  v.  Ranisays 
Malim  v.  Keigliley 
Malleson.  Morgan  v. 
Marten,  Flower  v. 
Massey's  Case 
Mayor,  Latrobe  v. 
M'Fadden  v-  Jenkyns 
McMurray,  Pittsburgh  Bank  v. 
Megod's  Case 
Mellor,  Stead  v. 
Messenger,  Hammond  v, 
Middleton.  Fogg  v, 
Middleton  v.  Spicer 
Mildm.ay,  King  v. 
Miller  v.  Bingham 
Milroy  v.  Lord 
Moore  v.  Darton 
Morgan  v.  Kansas  Co. 
Morgan  v.  Malleson 
Morice  v.  Bishop  of  Durham 
Morley  v.  Morley 
Mortimer  v.  Ireland 
Moulton,  Page  v. 
Mussett  V.  B  ingle 

Naime,  Gott  v. 

Neck,  In  re 

Nevil.  Saunders  v. 

New  England  Co.,  Bailey  v. 

Newman  v  Newman 

Noel  V.  Jevon 

Nort<jn  V.  Pln-lps 

Nort<jn  V.  Kay 

Note  (1  And.) 

Note  (Br.  N.  C.) 

Note  (Fitz.  Ab) 

Ogle,  Kx  parte 
Onslow  V.  Wallia 

Page  V.  Moulton 

Paint«T,  (^iiecn  v. 

PalniHr  v.  .^fliribb 

I'arkiT  V.  Tenant 

I'arr,  Lincoln  v. 

Parwfim,  In  re 

Paschal  I  v.  Keterich 

Pawlett  V.  Att'y-Gen. 

Peggc.  I)o«'  I). 

Pegge  V.  >kynncr 

Percy,  F.'iiiland  v. 

Perkins.  '!il<'S  v. 

PhfljiK.  Nortfin  V. 

Phillirick'H  .Settlement,  Re 

Phillips  V.  Phillips 

Pilling,  In  re 

Pimbt?"H  Case 

Pittaburgh  Bank  i;.  McMurray 


401 

Porter,  Wetmore  v. 

262 

5 

Poidter  V.  Cornwall 

7 

465 

Pratt  V.  Tuttle 

82 

61 

Price,  Drake  v. 

74 

272 

Price  V.  Price 

166 

406 

Priest  V.  Uppleby 

487 

149 

Pye,  Ex  parte 

123 

493 

Queen  v.  Painter 

265 

308 

Queen,  Shropshire  Co.  v. 

300 

13 

Quin,  Reichenbach  v. 

209 

83 

129 

Ramsays,  Makersy  v. 

13 

125 

Ray,  Norton  v. 

239 

42 

Reichenbach  v.  Quin 

209 

278 

Rex  V.  Williams 

352 

47 

Richards  v.  Delbridge 

130 

30 

Richardson  v.  Richardson 

156 

235 

Roberts  v.  Lloyd 

61 

91 

Robinson,  Brandon  v. 

394 

59 

Robinson  v.  Robinson 

495 

65 

Rogers,  Weakly  v. 

241 

304 

Ross  V.  Duncan 

212 

348 

Rowe,  Gardner  v. 

179 

389 

Rowley,  Appleton  v. 

881 

149 

Ruby,  Still  v. 

219 

39 

258 

Salmon,  In  re 

487 

129 

Same's  Case 

121 

195 

Sands,  King's  Att'y  v. 

354 

502 

Sarrel,  Colman  v. 

133 

508 

Saunders  v.  Dehew 

289 

116 

Saunders  v.  Nevil 

449 

201 

Saunders  v.  Vautier 

454 

Scholey,  Scott  v. 

441 

202 

Schribb,  Palmer  v. 

77 

19 

Schwab  I'.  Cleveland 

280 

449 

Scott  V.  Jones 

70 

250 

Scott  V.  Sclioley 

441 

335 

Sharington  v.  Strotton 

109 

374 

Shearman  v.  Johnson 

420 

420 

Sherratt,  Doily  v. 

511 

239 

Shoemaker  v.  Hinze 

29 

108 

Shropshire  Co.  v.  Queen 

300 

285 

Sidway,  Ilanier  v. 

33 

282 

Silvester,  Bulbeck  v. 

49 

Skynner,  Pegge  v. 

218 

504 

Shinning  v.  Style 

104 

462 

Sloane  v.  Cadogan 

135 

Smith,  In  re 

72 

110 

Sol  let,  Dale  v. 

7 

205 

Sonley  v.  Clockmakers'  Co. 

225 

77 

Speight  i\  Giiunt 

518 

26(i 

Spicer,  Middleton  v. 

364 

5 

Statute,  29  Car.  II.  Chap.  3  ;  §  7,  8,  9 

17(i 

510 

Sf;,tuto,  29  Car.  II.  Chap.  8 ;  §  10,  11 

437 

2 

Steiid  V.  Mellor 

91 

307 

Steele  V.  Clark 

44 

252 

Stephens  v.  B.'iily 

347 

21H 

Stevens,  Coo])er-Dean  v. 

20.-) 

42.'] 

Still  ('.  Kuby 

219 

9 

Stithr.  Lo<.kabill 

4(K> 

420 

Strickland  v.  Symona 

418 

459 

Strong,  llenrj-  i-. 

339 

331 

Strotton,  Slijiringt/)n  t;. 

109 

504 

Student,  Doctor  and 

107 

215 

Stnmore  v.  Campbell 

21 

30 

Style,  Slanning  v. 

164 

TABLE   OF  CASES. 


Swale  V.  Swale 
Sweetapple  v.  Bindon 
Symons,  Strickland  v. 

Talbot,  Kinp  i-. 

Taylor  v.  Vale 

Tenant,  Parker  v. 

Teynham,  Head  v. 

Third  Bank  v.  Lanjje 

Thoraassen  v.  Van  Vyngaarden 

Tidd  I'.  Lister 

Tierney  v.  Wood 

Tillott,  In  re 

Trigg,  Harland  v. 

Trinity  College  v.  Browne 

Turner's  Case 

Turner  v.  Buck 

Turner,  Farley  v. 

Turner,  Watts  v, 

Tuttle,  Pratt  v. 

Uppleby,  Priest  v. 

Vale,  Taylor  v. 

Van  Vyngaarden,  Thomasaen  v. 

Vautier,  Saunders  v. 


512 
370 
418 

472 
117 
266 
450 
318 

68 
465 
182 
468 

79 
278 
385 
450 

46 
453 

32 

487 

117 

68 
454 


Wadsworth,  In  re 
Walker  v.  Collier 
Wallace  i;.  Castle 
Wallis,  Onslow  v. 
Warwick,  Danser  v. 
Wasborne  v.  Downes 
Watta  V.  Ball 
Watts  V.  Turner 
Weakly  v.  Rogers 
Wells,  Goodright  v. 
Weston  V.  Danvers 
Wetmore  v.  Porter 
Wheate,  Burgess  v. 
Whitworth  v.  Gaugain 
Wilding  V.  Bolder 
Williams,  Elwin  v, 
Williams,  Rex  v. 
Willis,  Onslow  v. 
Wilson,  Lee  v. 
Winter,  Gibson  v. 
Witham's  Case 
Wood,  Tierney  v. 
Woolven,  Breton  v. 
Worcester  v.  Finch 
Worrall  v.  Harford 
Wych  V.  East  India  Co. 
Wynne  v.  Hawkins 


511 
3 

25 
462 
186 
332 
379 
453 
241 
445 
346 
262 
356 
408 
221 
386 
352 
462 
468 
267 
385 
182 
171 
370 
415 
271 

81 


CASES   ON    TRUSTS. 


CHAPTER  I. 
THE  NATUEE  AND  EEQUISITES  OF  A  TRUST. 


SECTION  I. 
A  Trust  distinguished  from  a  Debt. 

ANONYMOUS. 
In  the  Common  Pleas,  Hilary  Term,  1405. 

[Reported  in  Year  Book  6  Henry  IV.,  folio  7,  placitum  33. l] 

Debt  against  a  parson  and  counted  by  Tillesley  that  he  and  his  pre- 
decessors, etc.,  had  been  seised  of  an  annual  rfent  of  forty  shillings 
issuing  out  of  a  manor,  which  came  into  the  hands  of  the  King,  and 
he  by  letters  patent  leased  the  manor  to  one  who  delivered  the  forty 
shillings  to  the  defendant  to  pay  to  us,  and  so  action  accrued  to  us. 

Hankford,  J.  You  will  maintain  your  action  because  the  farmer 
of  the  King  delivered  the  forty  shillings  to  the  defendant  to  deliver  to 
you,  and  I  think  this  cannot  maintain  your  action,  for  if  one  delivers 
certain  monej's  to  you  to  pay  to  me,  I  shall  have  a  writ  of  Account 
against  you,^  and  not  a  writ  of  Debt,  because  there  is  no  contract  be- 
tween you,  and  so  in  this  case. 

Tilledey.     I  think  I  may  elect  to  have  Account  or  Debt. 

TiiiRNiNG,  C.  J.  If  one  took  the  rent  from  your  tenants  would  you 
have  Debt? 

Tillesley.     Not  there,  but  I  should  have  Trespass. 

TiiruMN'r;,  C.  J.  [?]  I  suppose  tliat  if  he  took  it  by  your  command, 
you  would  not  have  Debt,  but  Account,  for  there  is  no  contract  between 
you,  and  so  here.' 

'  The  caae  is  somewhat  abridf^C'l. — En. 

2  32  Efl.  III.,  Fitz.  Ah.  Acct.  lOfi ;  Y.  B.  1  Hen.  V.  1 1-21  ;  Y.  B.  36  Hen.  VI.  9, 10-5 ; 
Y.  B.  18  Ed.  IV.  2.1-.'-.;  Y.  B.  1  E.l.  V.  2-2;  Kol.sort  v.  Andrews  (l.'JMT).  Cm.  El.  82, 
2  Leon.  118,  pi.  lf,o.  3  Leon.  14'J,  jd.  l!t'>,  s.  c. ;  Huntley  v.  Gritlith  ( l.'j!)0),r;old.  159, 
per  Altham,  B. ;  Harrington  v.  Deano  (1612),  Hob.  36,  Brownl.  26,  8.  c. ;  Baynton  v. 
Cheek  (16.'')2),  Style,  3.53  Arrord. —  Ei>. 

«  Y.  B.  41  Ed.  III.  (1367),  10-5.  Candiih:  "If  I  deliver  certain  money  to  you  to 
deliver  to  John,  he  shall  have  a  writ  of  Account,  because  the  property  is  in  him  straight- 

1 


PASCIIALL  V.   KETERICIL  [CHAP.   L 


ANONYMOUS. 
In  the  Common  Pleas,  Michaelmas  Term,  1429. 

[Reported  in  Year  Book  8  Henry  VI.,  folio  10,  placitum  25.] 

Debt  upon  arrears  of  account.  The  plaintiff  was  examined  by  the 
statute,  and  it  was  found  that  tlie  account  was  because  the  defendant 
had  bought  certain  goods  of  the  plaintiff,  and  had  accounted  for  the 
money  before  the  auditors.  And  because  this  does  not  lie  in  Account, 
the  plaintiff  was  ordered  to  amend  his  count  or  the  defendant  should 
be  dismissed.     And  so  he  did,  and  declared  upon  a  contract.^ 


PASCHALL  V.  KETERICH. 
In  the  King's  Bench,  Michaelmas  Term,  1557. 

[Reported  in  Dyer,  1516,  placitum  5.2] 

Note,  By  the  opinion  of  all  the  Justices  of  each  bench,  where  a  man 
devised  by  his  last  will  and  testament  in  writing  that  his  executors 
should  sell  his  land,  and  that  his  daughter  should  have  a  portion  of 
the  money  for  her  advancement,  and  so  of  other  things  a  sum  certain, 
and  died,  and  his  executors  made  sale,  and  would  not  pay  the  legacies, 
wherefore  the  daughter  sued  execution  in  the  Court  Christian,  prohibi- 
tion well  lies  in  this  case,  because  it  is  not  a  legacy  testamentary,  but 
out  of  land,  by  reason  of  the  last  will,  in  the  performance  whereof  tlie 
Court  Christian  had  no  concern  ;  but  the  party  may  well  have  an  action 
of  account  at  common  law.^  See  the  contrary  opinion,  T.  9  Eliz.,  Dy. 
264,  b. 

way  upon  your  receipt  by  my  hand,  and  he  cannot  have  an  action  of  Debt."  Bellewe, 
Acct.  7  (1379).  Belknap,  C  J. :  "  If  I  am  debtor  to  Sir  Henry  Persay  in  .£20  and  I  bail 
the  money  to  J.  Holt  to  pay  the  money  to  him,  if  J.  Holt  does  not  pay  the  money,  he 
shall  have  an  action  of  Account  against  him,  and  no  other  action."  Anon.,  Keilw.  77a, 
776  Accord. 

A  bill  in  equity  may  be  brought  at  the  present  day  by  him  to  whose  use  the  money 
was  delivered.     Hosmer  ?;.  .Jewett,  6  Ben.  208.  —  Ed. 

1  Y.  B.  49  Ed.  III.  7-11  Accord.— 'Ed. 

2  Benl.  60,  8.  c  — Ed. 

8  See  to  the  same  effect,  Shep.  Touch.  (7th  ed.),  458 ;  Dens  v.  Dens,  1  Bulst.  153, 
per  Yelverton,  J.;  Jenk.  Cent.  Cas.  215,  pi.  56;  semhte  Account  lies  in  this  case  for 
the  daughters  at  common  law,  against  the  executors,  for  the  money  is  received  by  them 
to  the  use  of  the  said  daughters."  In  more  recent  times  Account  has  given  way  to 
Indebitatus  Assumpsit  for  money  had  and  received  by  the  devisee  to  the  use  of  the 
beneficiary   (Nicholson   v.   Sherman,  1   Sid.  45.  46:   Buttrick   v.   King,  7   Met.  20; 


SECT,  I.]  WALKER   V.   COLLIER. 


WALKER  V.    COLLIER. 

In  the  Common  Pleas,  Hilary  Term,  1595. 

[Reported  in  Croke  Elizabeth,  379.1] 

Trespass.  L'pon  a  special  verdict  the  case  was,  The  land  was 
devised  to  one  for  life,  remainder  to  the  plaintiff,  j)aying  five  and 
forty  shillings  to  John  S.,  and  it  was  found  that  the  land  was  worth 
three  pounds  per  annum.  The  teuaut  for  life  died  ;  and,  "Whether  the 
plaintiff  had  thereby  a  fee,  or  for  life?  was  the  question.  And  all 
THE  CoLTiT  resolved,  without  any  great  argument,  that  he  should  have 
it  in  fee,  especially  when  the  money  is  not  appointed  to  be  annually 
paid.  And  Anderson  said,  that  this  word  "  paying"  made  his  estate 
conditional :  but  the  not  finding  whether  it  was  paid  is  not  material ; 
no  more  is  the  finding  of  the  value.  Wherefore  it  was  adjudged  ut 
supra  for  the  plaintiff.^ 

Rogers  i;.  Daniell,  8  AIL  343  ;  Lj-nde  v.  Davenport,  57  Vt.  597) ;  or  to  a  bill  iu  equity; 
Edwards  v.  Graves,  Hob.  265. 

The  proceeds  of  the  sale  are  not  leg;al.  but  equitable  assets.  Germy's  Case,  1  Leon. 
87,  2  Leon.  119  ;  Barker  v.  May,  9  B.  &  C.  489,  4  M.  &  Ry.  386 ;  Perkins  v.  Lewis, 
41  Ala.  649 ;  Harland  v.  Person"(  Ala.  1891),  9  S.  R.  379  ;  Williams  v.  Nichol,  47  Ark. 
254 ;  Olmstead  v.  Brush,  27  Conn.  530 ;  Gregg  v.  Currier,  36  N.  H.  200 ;  Conklin  v. 
Egerton,  21  Wend.  430,  25  Wend.  224 ;  Ross  v.  Barclay,  18  Pa.  179. 

1  6  Rep.  16  a,  8.  c.  —  En. 

'■*  Doe  V.  Richards,  3  T.  R.  356 ;  Doe  v.  Holmes,  8  T.  R.  1  ;  Goodtitle  v.  Maddern, 
4  East,  496;  Funk  v.  Eggleston,  92  111.  515,  534;  Lindsay  v.  McCormick,  2  A.  K. 
Marsh.  229,  232;  Wait  v.  Bclding,  24  Pick.  129,  139;  Jackson  v.  Bull,  10  Johns.  148 
(semhle)  ;  Jack.son  v.  Martin,  18  .Johns.  31  ;  Spraker  v.  Vau  Alstyne,  18  Wend.  200; 
King  V.  Cole,  6  R.  I.  584. 

/  In  Doe  '•.  Holmes,  supra.  Lord  Kenyon  said,  p.  2  :  "  In  cases  of  this  kind  the  ques- 
tion has  always  been  whether  the  charge  is  to  be  paid  only  out  of  the  rents  and  profits 
of  the  estate  ?  or,  whether  it  is  to  be  paid  by  the  devisee  at  all  events  ?  In  the  former 
case  the  <levisee  only  takes  an  estate  for  life  ;  but  in  the  latter,  he  takes  a  fee,  otiier- 
wise  he  might  be  a  loser  hy  the  devise."  By  statute  the  devisee  now  takes  a  fee 
almost  everywhere  without  words  of  inheritance. 

/  Where  land  is  (levi.s'ed,  as  in  tlie  principal  case,  to  A,  "he  paying,"  or  "on  con- 
edition  that  he  pay,"  a  certain  sum  of  money  to  B,  B  acquires  a  twofold  right,  the  one 
an  equitable  charge  upon  the  land,  the  other  a  money  claim  against  A.  And  this 
claim  against  A  is  enforced  at  common  law  by  an  action  of  Debt,  or  Indebitatus  As- 
tHmpsit,  altliongli  IJ  was  a  stranger  to  tlie  transaction.  Ewor  v.  .Jones,  2  Ld.  Ray.  937, 
2  Salk.  415,  6  Mod.  26 ;  Webb  t;.  Jiggs,  4  M.  &  Scl.  119;  Braithwaito  v.  Skinner,  5  M. 
&  W.  313  ;  Harland  v.  Person  (Ala.  1801 ),  9  S.  R.  379  ;  Williams  v.  Nichol,  47  Ark. 
254;  Miilington  >•.  Mill,  47  Ark.  .301  ;  Lord  i\  Lord,  22  Conn.  595  ;  Olmstead  r.  Brush, 
27  Conn.  5.30;  Porter  v.  .Jackson,  95  Ind.  210;  Felch  v.  Taylor,  13  Pick.  133;  Adams 
V.  Adams,  14  All.  65;  Prentiro  v.  Brimhall,  123  Ma.os.  291,  293;  Smith  v.  .Jewett,  40 
N.  H.  .5.30.  .535;  Gridley  i;.  Gridlcy,  24  N.  Y.  1.30;  Lodcr  v.  Hatfield,  71  N.  Y.  92; 
Brown  r.  Kn.app,  79  N.  Y.  136 ;  Yearly  v.  Long,  40  Oh.  St.  27  ;  Etter  v.  Grcenawalt,  98 
Pa.  422;  Jordan  v.  Donahue.  12  R.  I.  199  {srmlile).  In  Zinimer  v.  Sennott,  134  111. 
505,  there  was  said  to  be  a  claim  against  the  devisee,  but  no  equitable  charge  upon  tb» 
land.  — Ed. 


HARRIS   V.   DE  BERVOIR.  [CHAP.  I. 


CLARK'S  CASE. 

In  the  Common  Pleas,  Michaelmas  Term,  1612. 

[Reported  in  Godbolt,  210.] 

Note  it  was  said  by  Cook,  C.  J.,  and  agreed  by  the  whole  Court,  and 
41  and  43  E.  3.  &e.  That  if  a  man  deliver  money  unto  I.  S.  to  my 
use,  that  I  may  have  an  action  of  Debt,^  or  Account  against  him  for 
the  same,  at  my  election. 


PETER  HARRIS  v.   PETER  DE  BERVOIR. 
In  the  King's  Bench,  Trinity  Term,  1624. 

[Reported  in  Croke  James,  687.] 

Debt  ;  supposing  that  one  Squire  delivered  to  the  defendant  one 
hundred  pounds  to  pay  to  the  plaintiff,  and  that  he  had  not  paid  it  to 
the  plaintiff :  wherefore  he  brought  this  action. 

After  verdict,  upon  non  debet,  it  was  moved  in  arrest  of  judgment, 
that  debt  lies  not ;  for  there  never  was  any  contract  betwixt  the  plain- 
tiff and  defendant,  nor  any  delivery  of  the  money  by  the  plaintiff  to 
the  defendant,  and  therefore  no  action  of  debt  lies :  yet  peradventure 
he  might  have  account  upon  this  receipt ;  but  no  other  action.  But  it 
was  agreed,  that  the  bailor  (if  the  money  be  not  delivered  to  him  to 
whom  it  ought  to  be  delivered)  may  have  action  of  debt  or  account  at 
his  election  ;  ^  but  he  to  whose  use  the  bailment  was  made  shall  have 
account  only. 

Damport,  for  the  plaintiff,  agreed,  that  if  money  be  delivered  to  an- 
other to  deliver  to  J.  S.  or  to  the  use  of  J.  S.  there  J.  S.  shall  not 
have  action  of  debt  but  account  only.  But  when  it  is  delivered  (as  it  is 
here)  solvend  to  J.  S.  which  is  intended  i^  satisfaction  of  a  debt,  there 
it  is  not  countermandable  ;  and  he  who  is  to  receive  it  as  a  debt  may 
upon  this  receipt  have  an  action  of  debt  or  account.    And  to  this  pur- 

1  Y.  B.  36  Hen.  VI.  9,  10-5  (1467),  per  Wangford;  Rast.  Ent.  (1540),  f.  159, 
Dett.  1 ;  Shaw  v.  Sherwood  (1599),  Cro.  El.  729,  by.  350  n.  (20),  Moore,  667,  Ow. 
127;  affirmed  Yelv.  25,  Brownl.  82;  Atkin  v.  Barwick  (1718),  1  Stra.  165,  166,  per 
Eyre,  J.  Accr/rd.  —  Ed. 

2  Y.  B.  19  Hen.  VI.  69,  A-14 ;  Y.  B.  20  Hen.  VL  35,  A-4  (but  see,  contra,  Y.  B. 
19  Hen.  VI.  5,  B-10)  ;  Britton  v.  Barnet,  Noy,  72,  Owen,  86,  s.  c. ;  Barkby  v.  Forster, 
Moore,  458  ;  Lincoln  v.  Topcliff,  Cro.  El.  644,  Noy,  72,  8.  c. ;  Brown  v.  London,  Freem. 
14,  1  Lev.  298,  8.  c.  Accord. 

Similarly,  if  the  defendant,  who  has  received  money  to  the  use  of  X,  seeks  to 
excuse  its  non-delivery  to  X  by  reason  that  it  was  lost,  he  is  chargeable  to  the  plain- 
tiff in  debt.  Parry  v,  Roberts,  3  A.  &  £.  118.  See  also  Remon  v.  Hay  ward,  2  A.  & 
E.  666.  — Ed. 


SECT.   I.]  LINCOLN  V.   PARR.  5 

pose  the  record  of  a  judgment  was  shown  in  Trinity  Term.,  13  Jac.  1, 
in  the  common  pleas,  Greenvile  v.  Slaning  in  debt,  supposing  that 
George  Greenvile  delivered  such  a  sum  to  be  paid  to  the  plaintiff ;  and 
for  non-payment  debt  was  brought ;  and  adjudged  for  the  plaintiff. 
Vide  28  Hen.  8  ;  Dyer,  21 ;  41  Edio.  Z,  pi.  10.  28  Edw.  3,  "  Debt," 
146,  that  the  bailor  may  have  debt  or  account ;  but  not  that  cesty  que 
use  shall  have  that  action.  But  36  Hen.  6,  pi.  10,  &  39  Hen.  6,  pi. 
44,  are,  that  cesty  que  use  the  delivery  is  made  may  have  debt  or 
account. 

And  of  that  opinion  were  Doderidge  and  Lea  :  wherefore  rule  was 
given  that  judgment  should  be  entered  for  the  plaintiff,  unless  other 
cause,  &c.     Vide  21  Hen.  T^pl.  7. 


LINCOLN   V.  PARR. 
In  the  King's  Bench,  Trinity  Term,  1671. 

[Reported  in  2  Keble,  781.] 

The  court  declared  their  opinion  that  no  evidence  of  account  will 
maintain  Indebitatus  as  on  money  delivered  to  a  factor,  who  often 
have  discharges  of  greater  value,  and  so  involve  the  court,  which  they 
will  not  allow.  Ex  motione  Winnington  to  alter  visn,  and  it  was  said  so 
to  be  ruled  in  Guildhall  last  sitting.^ 

1  Speake  v.  Richards  (1617),  Hob.  206.  Per  Curiam  :  "The  action  of  account  Is 
necessary,  wherg  the  first  receipt  ab  initio  was  directed  to  a  merchandizing,  which 
makes  uncertainty  of  the  neat  remain  till  account  finished  ;  or  where  a  man  is  charged 
aa  bailifif  of  a  manor,  or  the  like,  whereupon  the  certainty  of  his  receipt  appears  not 
till  account ;  yet  even  in  the  case  of  merchandizing  an  action  of  Debt  will  lie  for  the 
summ  received  before  the  merchandize,  yea  and  after  the  merchandize,  for  so  much  as 
he  hath  not  so  imphned  ;  and  therefore  if  I  deliver  an  100  pounds  to  one  to  bu}' cattle, 
and  if  he  bestow  50  pounds  of  it  in  cattle,  and  I  bring  an  action  of  debt  for  all,  I  shall 
be  barred  in  that  action  for  that  money  bestowed  and  charges,  &c.,  but  for  the  rest  I 
shall  recover." 

Ilussey  V.  Fiddall  (1699),  12  Mod.  .324.  Holt,  C.  J. :  "  Keyling,  Chief  Justice  [1665- 
1671],  would  allow  Indebitatus  against  a  receiver  or  factor,  but  Hale,  Chief  Justice 
[1671-1670],  would  not." 

Anonyniou.s  (1706),  11  Mod.  92.  "  Powell,  J.  If  I  give  money  to  another  to  buy 
goods  for  mo,  and  he  neglects  to  buy  them,  for  this  breach  of  trust  I  shall  have  elec- 
tion to  bring  debt  or  account ;  and  cited  f<nir  or  five  cjises.  Holt,  C.  J.,  contra.  H  the 
party  did  nr)t  take  it  a.s  a  debt,  but  ad  annjmldndum,  or  ad  vierchandizandum,  it  must 
be  an  account,  and  ho  shall  have  the  benefit  of  an  accountant;  which  is,  he  may  plead, 
being  robbed,  which  shall  be  a  good  plea  in  the  last  caao,  and  not  in  the  first." — Ei>. 


6  KEY  V.   GORDON.  [CHAP.  L 


FARRINGTON   v,   LEE. 
In  the  Common  Pleas,  Tkinity  Term,  1677. 

[Reported  in  2  Modern  Reports,  268.] 

The  Court.  Whereas  it  has  been  said  by  Serjeant  Newdigate,  that 
the  plaintiff  here  has  an  election  to  bring  an  action  of  account,  or  an 
indebitatus  assumpsit,  that  is  false ;  for  till  the  account  be  stated  be- 
twixt them,  an  action  of  account  lies,  and  not  an  action  upon  the 
case,  — When  the  account  is  once  stated,  then  an  action  on  the  case 
lies,  and  not  an  action  of  account.  —  And  by  North,  C.  J.  If  upon  an 
indebitatus  assumjmt  matters  are  offered  in  evidence  that  lie  in  ao- 
count,  I  do  not  allow  them  to  be  given  in  evidence.^ 


KEY  V.   GORDON. 
In  the  King's  Bench,  Easter  Term,  1701. 

[Reported  in  12  Modern  Reports,  521.] 

Indebitatus  Assumpsit  by  an  under  officer  against  his  Colonel  for 
his  pay. 

Holt,  C.  J.  If  one  receive  money  to  the  use  of  another,  an  indebi- 
tatus is  a  proper  remedy  for  it ;  '^  but  if  in  this  case  there  were  any 

/i  S.  C,  Freem.  230:  "And  per  North.  There  is  a  great  deal  of  difference  be- 
tween thi.s  action  [^Indebitatus  assninpsit]  and  that  of  Account;  for  it  was  resolved  by 
all  the  judges  in  the  case  of  Sir  Paul  Neal,  that,  in  all  accounts  where  allowances  are 
to  be  made,  no  action  on  the  case  will  lie,  but  an  Account  must  be  brought,  which  is 
the  proper  action."     2  Mod.  31 1,  s.  c.  —  Ed. 

2  Gilbert  v.  Ruddeard  (1607),  Dy.  272  a,  n.  (32)  ;  Beckingham  v.  Lambert  (1616), 
I  Rolle,  R.  391  ;  Tenant  v.  Elliott,  1  B.  &  P.  3 ;  Farmer  v.  Russell,  1  B.  &  P.  296  ; 
Moody  V.  Spencer,  2  D.  &  Ry.  6;  De  Bernales  v.  Fuller,  14  Ea.st,  590,  n.  (a) ;  Lilly  v. 
Hays,  5  A.  &  E.  548;  Vincent  v.  Rogers,  30  Ala.  471,  475  (semble) ;  Seals  v.  Hollo- 
way,  77  Ala.  344  ;  Lewinshon  v.  Edwards,  79  Ala.  293 ;  Crocker  v.  Higgins,  7  Conn. 
342,  348  {semble)  ;  Johnson  v.  Collins,  14  Iowa,  63  ;  Owinga^w.  Owings,  1  Har.  &  G. 
484  (semble^  ;  Putnan?  v.  Field,  103  Mass.  556 ;  Fay  v.  Sanderson,  48  Mich.  259  ; 
Wentworth  v.  Gove,  45  N.  H.  160 ;  Nolan  v.  Manton,  46  N.  J.  231  (semble) ;  Weston  v. 
Barker,  12  Johns.  276  ;  Wyman  v.  Smith,  2  Sandf.  331  ;  Murdock  v.  Aikin,  29  ^rb. 
59  ;  Ross  v.  Curtis,  30  Barb.  238>Chapman  v.  Forbes,  123  N.  Y.  532 ;  Middleton  v. 
Twombly,  125  N.  Y.  520^  Draughan'v.  Bunting,^  Ired.  10;  White  u.  Hunt,  64  N.  C. 
496;  Aycinena  v.  Peries,  6  Watts  &  S.  243 ;  Zacharias  v.  Zacharias,  23  1**^'452 ; 
Hostetter  v.  Hollinger,  117  Pa.  606  Accord. 

So  where  prrjperfj'  is  given  by  A  to  B  to  convert  into  nfooey  and  pay  the  same  "to 
C,  C  may  charge  B,  if  at  all,  by  an  action  of  indebitatus  assumpsit  for  money-had  and 
received.  Walker  v.  Rostron,  9  M.  &  W.  411  ;  Hitchcock  v.  Lukens,  8  Port.  (Ala.) 
3.33  ;  Kreutz  v.  Livingston,  15  Cal.  344;  Lockwood  v.  Canfield,  20  Cal.  126;  Miller  v. 
Billingsly,  41  Ind.  489;  Hall  v.  Marston,  17  Mass.  575;  Fitch  v.  Workman,  9  Met. 
517;  Fitch  ».  Chandler,  4  Cush.  254  (semble);   Mellen  v.  Whipple,!  Gray,  317,  322 


SECT.  I.]  DALE  V.   SOLLET.  7 

legal  deduction  to  be  made  by  the  Colonel,  the  remedy  had  been  ac- 
count ;  for  where  one  receives  money,  and  has  no  way  to  discharge 
himself  of  it  but  payment  over,  an  indebitatus  w'ill  lie. 


POULTER  V.  CORNWALL. 

^  In  the  Queen's  Bench,  Trinity  Term,  1706. 

"^  [Reported  in  1  Salkeld,  9.] 

*^       Indebit.  assumpsit  for  money  received  ad  computandum.    Verdict 

t«v     pro  quer.,  and  moved  in  arrest  of  judgment,  that  this  action  did  not 

i-      lie,  but  account :  for  if  a  man  receives  money  to  a  special  purpose,  as 

to  account,  or  to  merchandize,  it  is  not  to  be  demanded  of  the  party 

as  a  duty,  'till  he  has  neglected  or  refused  to  apply  it  according  to 

the  trust  under  which  he  received  it :  and  the  declaration  must  shew 

^ro.  misapplication,  or  breach  of  trust.     Et  per  Cur.     The  verdict  has 

aided  this  declaration,  for  it  must  be  intended  there  was  proof  to  the 

jury,  that  the  defendant  refused  to  account,  or  had  done  somewhat 

else  that  rendered  him  an  absolute  debtor.^ 


DALE  V.   SOLLET. 
In  the  King's  Bench,  November  17,  1767. 

[Reported  in  4  Burrow,  2133] 

This  was  an  action  for  money  had  and  received  to  the  plaintiflTs 
use  :  nrm  assumpsit  was  pleaded  ;  and  issue  joined. 

Case. — The  defendant,  a  ship-broker,  was  the  plaintiff's  agent  in 
suing  ff)r  and  recovering  a  sum  of  money  for  damages  done  to  the 
plaintiffs  ship  ;  and  did  recover  and  receive  2,000/.  for  the  plaintiff's 
use ;  and  paid  liim  all  but  40/.  which  he  retained  for  his  labour  and 
service  therein  ;  which  the  witness  (Mr.  Fuller)  swore  he  thought  to 
bo  a  reasonable  allowance.  And  the  jin-y  were  of  opinion  "that  the 
defendant  ought  to  retain  401.  as  a  reasonal)le  allowance."  Conse- 
quently, the  plaintiff  was  not  intitled  to  recover. 

The  plaintiff  objected,  at  the  trial,  "  That  the  defendant  could  not 
give  evidence  in  this  manner,  of  this  labour  and  service ;  but  ou(jht  to 

{semhlr);  Frost  v.  Gage,  1  All.  262;  Catlin  v.  Birchard,  13  Mirh.  110;  Delaware 
Co.  V.  Wfstrhr-stpr  P.!iiik,4  Don.  07  ;  IIiit.(liiiif,'H  v.  Miner,  40  N.  Y.  4.^0  {scmhie)  ;  Wins- 
low  V.  I'Vnnor,  I'hill.  (N.  C.)  5G.5  ;  Fleiiiing  i;.  Alter,  7  S.  &  K.  295  ;  Stoudt  r.  lline, 
45  Pa.  .30;  Drake  v.  Whaley  (S.  Ca.),  14  S.  E.  R.  097 ;  riielps  i;.  Conant,  30  Vt.  277; 
Millfr  r.  Lfikf,  24  W.  Va.  545  {sewhip). 

The  j)Iaintiff  may  of  roiirHC  proceed  in  hikIi  ca.sc  by  a  l)iil  in  equity.  Hooper  v. 
Holmes,  3  Stock.  122  ;  Miller  v.  Lake,  24  VV.  Va.  545.  —  Ed. 

1  Buchanan  v.  Parker,  5  Ired.  597  Accord,  —  Ed. 


8  DALE   V.   SOLLET.  [CIIAP.  I. 

have  PLEADEn  it  by  way  of  sett-ofk,  or  at  least  have  given  ^notice  of 
it  as  a  sett-of." 

A  verdict  was  found  for  the  plaintiff ;  subject  to  the  opinion  of  this 
Court:  and  if  the  Court  should  be  of  opinion  against  him,  then  judg- 
ment to  be  entered  as  upon  a  nonsuit. 

Accordingly,  on  Tuesday  last,  (the  10th  instant,)  Mr.  Dunninq 
moved  on  belialf  of  the  defendant,  "  that  judgment  might  be  entered 
against  the  plaintiff,  as  upon  a  nonsuit : "  and  had  a  Rule  to  shew 
cause. 

i>ir  Fletcher  Norton,  on  behalf  of  the  plaintiff,  now  shewed  cause; 
and  insisted  that  the  defendant  ought  either  to  have  jyleaded  it,  or 
given  notice  of  a  sett-off :  but  that  he  could  not  take  advantage  of  it 
in  this  manner,  vAthoxit  either  plea  or  notice. 

Lord  Mansfield  had  no  doubt  of  the  defendant's  being  at  liberty 
to, give  this  evidence. 

v^This  is  an  action  for  money  had  and  received  to  the  plaintiff's  use. 
The  plaintiff  can  recover  no  more  than  he  is  in  conscience  and  equity 
entitled  to^  which  can  be  no  more  than  what  remains  after  deducting 
all  just  allowances  which  the  defendant  has  a  right  to  retain  out  of  the 
very  sum  demanded.  This  is  not  in  the  nature  of  a  cros.s-demand  or 
mutual  debt :  it  is  a  charge,  which  makes  the  sum  of  money,  received 
for  the  plaintiff's  use  so  much  less. 

The  TWO  other  judges  concurred. 

Per  Cur'.     Judgment  for  the  defendant,  as  on  a  nonsuit.'^ 

^  Lord  Mansfield's  innovation,  sanctioning  the  use  of  Indebitatus  assumpsit  aj^ainst  a 
defendant,  who  is  entitled  to  allowances  in  the  way  of  commissions  and  expenses,  has 
been  almost  everywhere  followed.  It  is  impossible  for  the  plaintiff  in  such  a  case  to 
prove  his  allegation  that  the  defendant  is  indebted  to  him,  as  has  been  pointed  out  by 
Professor  Langdell  in  2  Harvard  Law  Keviow,  253-257 ;  but  the  great  convenience  of 
this  common  count,  as  compared  with  the  .action  of  account,  or  a  bill  in  equity,  the 
legitimate  substitute  therefor,  has  led  the  courts  to  shut  their  eyes  to  this  objection. 
Accordingly  Indebitatus  assumpsit  has  been  allowed  against  a 

Factor.— Z\ni±  v.  Walker,  2  Blackst.  1154;  Tomkins  v.  Willshear,  5  Taunt.  431 
(semble) ;  Arnold  v.  Webb,  5  Taunt.  432  n.  (a),  (semble) ;  Judah  i-.  Dyott,  3  Blackf.  324 ; 
Perry  v.  Smith,  31  Kas.  423. 

A'jent  for  Collection. —  Sneed  v.  Hanly,  Hempst.  659;  Kimbro  v.  Waller,  21  Ala. 
376  ;  Jett  o.  Hempstead,  25  Ark.  462  ;  Central  Co.  v.  First  Bank,  73  Ga.  383  ;  Hayward 
V.  Gunn,  82  HI.  385;  Cagwin  v.  Ball,  2  HI.  Ap.  70;  Helvey  i-.  Board,  6  Blackf.  317; 
Dodds  V.  Vannoy,  61  Ind.  89  ;  Coffin  v.  Coffin,  7  Gi-eenl.  298 ;  Mast  ;;.  Easton,  33 
Minn.  16'l ;  Wentworth  v.  Gove,  45  N.  H.  160;  Stafford  v.  Richardson,  15  Wend. 
302;  Finney  v.  Cochran,  1  Watts  &  S.  112;  Krause  r.  Dorrance,  10  Barr,  462;  Wick- 
ersham  v.  Lee,  83  Pa.  416 ;  Estes  v.  Stokes,  2  Rich.  133 ;  Cocke  v.  McGinuis,  Mart.  & 
y.  361 ;  Lawrence  Univ.  v.  Smith,  32  Wis.  587. 

Pledgee  or  Mortgagee  for  surplus  proceeds  of  a  sale.  — Over.street  v.  Nunn,  36  Ala. 
666  ;  Webster  v.  Singley,  53  Ala.  208  ;  Ballinger  v.  Bourland,  87  HI.  513 ;  Brnnson  v. 
Ballou,  70  Iowa,  .34 ;  Hertle  v.  Schwartze,  3  Md.  366;  Arms  r.  Ashley,  4  Pick.  71; 
Varnum  v.  Meserve,  8  All.  158;  Estabrook  v.  Earle,  97  Mass.  .302;  Hancock  v. 
Franklin  Co.,  114  Mass.  155;  Cook  v.  Basley,  123  Mass.  396;  Cope  v.  Wheeler,  41  N. 
Y.  303. 

Trustee  of  Insurance  Pollrij  for  proceeds  of  policy.  —  Sidaways  v.  Todd,  2  Stark. 
400  (see  London  Co.  v.  Glyn,  1  E,  &  E.  652) ;  Gould  v.  Emerson,  99  Mass.  154 ;  Der 


SECT.  I.]  GILES   V.    PERKINS. 


GILES   AND  Another  v.  PERKINS  and  Others,  Assignees  of 
DICKENSON   AND  Others,  Bankrupts. 

In  the  King's  Bench,  November  7,  1807. 

[Reported  in  9  East,  12.]  '■ 

Dickenson  &  Co.  were  bankers  at  Birmingham,  with  whom  the  ^ 
plaintiffs  had  opened  a  banking  account  in  1804,  which  was  continued 
down  to  the  18th  of  November,  1805,  when  Dickenson  &  Co.  stopped 
payment  and  became  bankrupts.  On  the  12th  of  November,  1805, 
the  plaintiffs  paid  into  the  bank  three  bills  to  the  amount  of  above 
£1100,  which  were  indorsed  by  them,  but  were  not  due  till  December 
and  January  following ;  and  at  the  time  of  the  bankruptcy  there  was 
a  considerable  balance  due  to  the  plaintiffs  upon  their  cash  and  bills 
(due)  account,  independent  of  the  three  bills  in  question.  It  was  stated 
to  be  the  practice  of  this  and  other  banking-houses  in  the  country,  that 
when  bills  which  were  approved  were  brought  to  them  by  a  customer, 
though  the  bills  were  not  then  due,  if  they  had  not  a  long  time  to  run, 
they  would  enter  them  in  a  gross  sum  with  cash,  or  paper  which  was 
immediately  payable,  to  the  credit  of  the  customer;  giving  him  either 
cash  or  liberty  to  draw  upon  them  to  that  amount.  And  the  bankers 
so  far  considered  these  running  bills  (which  were  always  indorsed  by 
the  customer)  as  their  own,  that  they  would,  as  convenience  required, 
pay  them  away  to  other  customers  in  the  usual  course  of  business,  or 
transmit  them  to  their  own  correspondents  in  London  :  and  interest 
was  charged  on  both  sides  the  account  on  such  paper  transactions ; 
and  if  the  interest  account  turned  out  to  be  against  the  customer,  the 
bankers  also  charged  a  certain  commission.  Differing  in  this  respect 
from  the  practice  of  bankers  in  London,  who,  upon  the  receipt  of  un- 
due bills  from  a  customer,  do  not  carry  the  amount  directly  to  his  credit, 
but  enter  them  short,  as  it  is  called  ;  that  is,  note  down  the  receipt  of 
the  bills  in  his  account,  with  the  amount,  and  the  times  when  due,  in  a 

romc  i;.  Vose,  140  Ma.ss.  .575;  Kimball  i'.  Oilman,  GO  N.  II.  54;  Roberts  v.  Ely,  113 
N.  Y.  128. 

Gunrrlian.  —  Pirkoriiig  i".  Do  Koclicmont,  45  N.  II.  C7. 

In  Thoma-s  v.  Th'ini.'i.s  (1850),  5  Kx.  28,  a  tonaiit  in  common  failed  in  an  action  of 
fnth'liitattis  fissiimp.iit  af^ajust  liis  cotenant,  wlio  liad  rncnivpd  inoro  than  bis  sliaro  of  tlio 
jirofitH.  This  ca.Hf!  bus  Ix'cn  tiionf^bt  to  bo  at  variance  witii  Lord  Mansfiold'.s  decision 
in  Dale  v.  Sollet.  2  Harvard  Law  Hoview,  250.  Hut,  altii(jngii  I'arkc,  IJ.,  in  tlic  opinion 
of  tho  court,  makes  tiie  old  and  really  fundamental  distinction  between  Account  and 
Debt,  this  distinction  was  not  material  to  tlie  decision.  No  actimi  wbatevor  lav  at 
conunon  law  by  one  cotenant  apainst  bis  fellow,  nide.ss  tho  latter  had  become  i)y  agree- 
ment the  bailiff  of  the  former.  Tim  Htatuto  4  Anne,  c.  16,  §  27.  pave  the  remedy 
of  Account  .-igainst  the  cotenant  .as  bailiff,  thoufjh  not  in  fa<'t  a  iiailiff.  lint  tbi-  statu-  •• 
tory  remedy  di<l  not  extend  beyond  aci-onnt.  Indt hildliis  (i.ssiiiniinil  w.xs,  accordingly, 
inadmissible. 

r?ut  an  assignee  under  a  general  nssignment  for  the  benefit  of  creditors  is  not 
chargeable  by  a  creditor  in  luilcliilatuR  ossumfisit.  Massachusetts  I'ank  v.  linllock,  120 
Mass.  86 ;  Dias  v.  Bruuoll,  24  Wend.  9  ;  Mansfield  v.  Mauuf.  Co.,  52  Vt.  444.  — Ed. 


10  GILES   V.   rEHKINS.  [CIIAP.  I. 

previous  column  of  the  same  page ;  which  sums  when  received  are 
carried  forwards  iuto  the  usual  cash  column.  In  the  present  case  the 
assignees  of  ti\e  l)aiikrupts,  considering  that  the  tiu'ce  bills  in  question 
had  been  entered  in  tlie  bank  books  in  common  witii  cash,  and  that  l)y 
the  usual  mode  of  dealing  the  plaintiffs  might  have  drawn  for  the 
amount  before  the  bills  were  due,  refused  to  deliver  them  up  to  the 
plaintiffs  on  demand  ;  and  as  they  l)ccame  due  the  assignees  received 
the  money  from  the  acceptors,  to  the  credit  of  the  bankrupts'  estate : 
for  which  tlie  plaintiffs  brougiit  their  action  for  money  had  and  re- 
ceived. And  the  question  was,  whether  they  were  entitled  to  receive 
back  these  bills  in  specie  from  the  bankrupts  at  the  time  of  their  bank- 
ruptcy, the  same  not  being  then  due,  though  indorsed  by  them,  and  the 
balance  of  the  cash  account  being  in  favor  of  the  plaintiffs  ;  or  whether 
they  were  only  entitled  to  come  in  as  creditors  under  the  commission 
for  the  whole  amount  of  their  banking  account.  Lord  Ellenborougii, 
C.  J.,  was  of  opinion,  at  the  trial  before  him  at  Guildhall,  that  the 
plaintiffs  were  entitled  to  recover ;  and  they  accordingly  obtained  a 
verdict  for  the  amount  of  the  bills. 

Garrow  and  Richardson  now  moved  for  a  new  trial ;  relying  on  the 
course  of  dealing  of  country  banl>ers  who  always  entered  approved 
bills  at  the  usual  short  dates,  as  cash,  and  gave  the  customers  the 
benefit  of  drawing  upon  them  for  the  amount  accordingly.  And  he 
referred  to  Bent  v.  Puller,  where  there  having  been  a  general  bill 
account  between  two  parties,  one  of  whom  became  bankrupt,  it  was 
considered  that  the  solvent  part}',  in  whose  favor  the  balance  was, 
could  not  maintain  trover  for  the  bills  deposited  by  him  with  the  other ; 
they  having  been  paid  in  on  a  general  account,  and  not  specifically 
appropriated  to  answer  particular  drafts  which  had  not  been  paid  by 
the  bankrupt. 

Lord  Ellenborough,  C.  J.  Every  man  who  pays  bills  not  then  due 
iuto  the  hands  of  his  banker  places  them  there,  as  in  the*  hands  of  his 
agent,  to  obtain  payment  of  them  when  due.  If  the  banker  discount 
the  bill  or  advance  money  upon  the  credit  of  it,  that  alters  the  case  ; 
he  then  acquires  the  entire  property  in  it,  or  has  a  lien  on  it  x>^'o  tanto 
for  his  advance.^  The  only  difference  between  the  practice  stated  of 
London  and  country  bankers  in  this  respect  is,  that  the  former,  if  over- 
drawn, has  a  lien  on  tlie  bill  deposited  with  him,  though  not  indorsed  ; 
whereas  the  country  banker,  who  always  takes  the  bill  indorsed,  has 
not  only  a  lien  upon  it,  if  his  account  be  overdrawn,  but  has  also  his 
legal  remedy  upon  the  bill  by  the  indorsement ;  but  neither  of  them  can 
have  any  lien  on  such  bills  until  their  account  be  overdrawn  :  and  here 
the  balance  of  the  cash  account  at  the  time  of  the  bankruptcy  was  in 
favor  of  the  plaintiffs. 

Per  Curiam.     Rule  refused.^ 

1  Ex  parte  Thompson,  Mont.  &  M.  102  Accord.  — Y,d. 

2  Zinck  t'.  Walker,  2  Black.st.  1154;  Ex  parte  Madison,  1  Rose,  241  (cited) ;  Parke 
o.  EliasoD,  1  East,  544 ;  Ex  parte  Rowton,  1 7  Ves.  426, 1  Rose,  15,  s.  c. ;  Ex  parte  Sol- 


* 


SECT.  I.]  GILES  V.   PEEKINS.  11 

lers,  18  Ves.  229 ;  Ex  pmie  Sergeant,  1  Rose,  153  ;  Ex  parte  Pease,  19  Yes.  25, 1  Rose, 
232,  8.  c. ;  Ex  parte  Wakefield  Bank,  1  Kose,  243 ;  Ex  parte  Leeds  Bauk,  1  Rose,  254 ; 
Ex  parte  Buchanan,  1  Rose,  280 ;  Thompson  v.  Giles,  2  B.  &  C.  422 ;  Ex  parte  Armit- 
stead,  2  Gl.  &  J.  371 ;  Ex  parte  Be^on,  Mont.  &  Bl.  120;  Jombart  v.  Woollett,  2  M. 
&  Cr.  389 ;  Ex  parte  Bond,  1  M.  D.  &  D.  10;  Ex  parte  J^dwards,  11  L.  J.  Bauk.  36  ; 
Ex  parte  Barkworth,  1  DeG.  &  J.  140;  Scott  v.  Ocean  Bauk,  23  N.  Y.  289;  Second 
Bank  v.  Cummings  (Tenn.),  18  S.  W.  R.  115  Accord. 

Although  the  plaiutiff  was  allowed  to  succeed  in  the  common  law  action  of  trover, 
it  seems  clear  that  in  this  class  of  ca.ses,  as  iu  those  where  a  defrauded  vendor  resorts 
to  the  same  remedy  agaiust  the  fraudulent  vendee,  the  court  of  law  have,  perhaps 
unconsciously,  admitted  trover  as  a  substitute  for  a  bill  in  equity.  In  Ex  parte  Dumas, 
2  Ves.  583,  Lord  Ilardwicke,  in  1754,  said:  "  It  must  be  a  very  extensive  question, 
whether  the  property  of  these  bills  iu  point  of  law  remained  in  the  petitioners,  so  that 
they  miglit  maintain  Trover  at  law.  They  were  all  made  payable  to  Juliaus  or  order ; 
and  then  he  doubted  no  action  of  Trover  could  be  maintained  ;  for  the  property  of  the 
paper  will  follow  the  chose  iu  actiou ;  but  it  would  be  sufficient  if  they  could  be  made 
trustees  for  the  petitiouers."  So  to  the  same  effect,  Collins  v.  Martin,  1  B.  &  P.  648, 
651,  per  Eyre,  C.  B.  Lord  Eldon  reluctantly  recognized  the  innovation  in  Ex  parte 
Pease,  19  Ves.  46:  "I  do  not  consider  whether  these  bills  might  be  recovered  in  an 
action.  If  the  doctrine  of  those  cases  is  right,  in  which  the  court  has  struggled  upon 
equitable  principles  to  support  an  action  of  trover,  these  bills  might  be  recovered  at 
law ;  but  there  is  no  doubt  that  they  might  be  recovered  by  a  bill  iu  equity." 

If  matured  or  demand  paper  is  iudor.sed  "for  collection "  or  "for  deposit,"  and 
deposited  in  a  bank,  the  bauk  is  presumptively  not  a  debtor  until  the  paper  is  paid. 
Commercial  Bank  v.  Armstrong,  39  Fed.  Rep.  684;  Fifth  Bank  v.  Armstrong,  40  Fed. 
Rep.  46;  Fir.st  Bank  t-.  Armstrong,  42  Fed.  Rep.  193;  Nat.  Bauk  i;.  Hubbell,  117 
N.  Y.  384;  La.  Co.  v.  State  Bank,  1  JIcGloin,  181. 

The  rule  should  be  the  same  where  the  paper  is  indorsed  "  for  collection  and  credit." 
But  see,  contra,  First  Bank  v.  Armstrong,  39  Fed.  Rep.  231 ;  Ayres  v.  Farmers'  Bauk, 
79  Mo.  421 ;  Bullene  v.  Coates,  79  Mo.  426. 

The  same  presumption  seems  jnst  when  the  paper  is  simply  indorsed  in  blank  by 
the  depositor.  lie  Agra  Bank,  36  L.  J.  Ch.  151  (srmble);  St.  Louis  Co.  v.  Johnston, 
133  U.  S.  566  (reversing  s.  c,  27  Fed.  Rep.  243) ;  Balbach  v.  i'rclinghuysen,  15  Fed. 
Rep.  675  (approved  in  Hoffman  v.  First  Bank,  46  N.  J.  604  ;  but  see  Terhuue  i'.  Bergen 
Bauk,  34  N.  J.  Eq.  367;  Titus  v.  Mechanics'  Bank,  35  X.  J.  588.) 

But  see,  contra,  Somerville  v.  Beal,  49  Fed.  Rep.  790  (semble) ;  Metropolitan  Bank 
V.  Loyd,  90  N.  Y.  530  (adopted  in  Brooks  v.  Bigclow,  142  Mass.  6,  as  controlling  evi- 
dence of  New  York  law). 

In  .Moors  v.  Goildard,  147  Mass.  287,  it  was  decided  that  the  bank  was  not  a  debtor 
becau.se  the  customer  was  allowed  to  draw  against  the  dejjosit  only  as  a  matter  of 
courtesy;  but  it  was  said  that,  if  the  customer  were  entitled  to  draw  as  a  matter  of 
right,  the  transaction  would  import  a  discount.  It  should  be  observed  iu  regard  to 
Metropolitan  Bank  v.  Loyd,  supra,  tliat  tiic  controversy  arose  between  the  depositor 
and  a  creditor  of  tiie  bank  to  whom  the  latter  had  forwarded  the  pajier  on  account  of 
its  debt ;  the  case  may  be  thought,  therefore,  to  show  the  disposition  of  the  New  York 
courts  to  strain  tiic  facts  in  order  to  avoid  the  npiilication  of  their  unfortnnat(>  doctrine 
that  a  creditor  taking  a  bill  on  account  of  his  claim  docs  not  rank  as  a  purcluiser  for 
value. 

From  the  moment  of  colleftir)n,  however,  wlicthor  the  paper  is  indorsed  in  l)laiik, 
or  "  for  collection,"  or  "  for  collection  and  cretlit,  "  the  bank  is  prcsum])tively  a  dclitur, 
being  entitled  and  accustomed  to  treat  the  proceeds  of  the  paper  as  its  own.  Re  Hallott's 
Estate,  13  Ch.  Div.  723,  724,  per  Thcsiger,  L.  J. ;  Crowtlior  v.  Elgood,  34  Ch.  Div.  004, 
per  Cotton,  L.  J.;  (l)nt  see  AV  West  of  Englaml  IJank,  11  Cli.  I).  772;)  .Marino 
Bank  v.  Fulton,  2  Wall.  252;  I'lanters'  Hank  v.  Union  Bank,  16  Wall.  483,  501; 
Pha;nix  Bank  v.  Hisley,  111  U.  S.  125;  Balbach  r.  Fnlinglinyscn,  15  Fed.  Ufji.  675, 
682,  6«3  {srwhir);  Nat.  Bank  r.  Millfr.  77  Ala.  1C,h;  Maritnt  Jiank  r.  (•jianiilcr,  27  III. 
625;  Marine  Bank  v.  Rushmore,  28  111.  463;  Tinkhani  v.  Ilcyworth,  31  III.  519;  Clark 
V.  Merchants'  Bank,  2  N.  Y.  380;  People  v.  Merchants'  Bank,  78  N.  Y.  269;  Briggs  v. 


12  CARSTAIKS  V.    BATES.  [CHAP.  I 


CARSTAIRS  AND  Others,  Assignees  of  KENSINGTON  &  Co., 

Bankkupts,  v.  bates. 

At  Nisi  Pkius,  before  Lord  Ellenborough,  C.  J     December  18, 

1812. 

[Reported  in  3  Campbell,  301.] 

This  tvi's  an  action  against  the  defendant,  as  acceptor  of  a  bill  of 
exchange  for  £230,  dated  13  July,  1812,  drawn  by  J.  Allpoit,  payable 
to  his  own  order,  at  two  months  after  date,  and  indorsed  by  him  to 
the  bankrupts. 

AUport,  the  drawer,  kept  cash  with  Kensington  &  Co.,  the  bank- 
ers. On  the  17th  of  July  they  discounted  for  him  this  bill  and  two 
others,  — one  for  £50  and  another  for.  £80.  They  credited  him  with 
the  amount  of  the  three  bills,  and  debited  him  with  the  discount ;  so 
that,  deducting  the  discount,  they  were  placed  to  his  account  as  cash, 
which  he  might  immediately  have  drawn  out.  There  was  then  a  bal- 
ance due  to  him  of  three  or  four  hundred  pounds,  and  his  account 
remained  good  till  the  banking-house  stopped  payment.  This  hap- 
pened on  the  21st  of  July,  and  the  commission  of  bankrupt  was  sued 
out  the  following  day. 

FarJi,  for  the  defendant,  insisted  that  the  action  could  not  be  main- 
tained, as  the  bill  of  exchange  under  these  circumstances  remained 
the  property  of  AUport ;  and  he  relied  upon  Giles  v.  Perkins,  in  which 
it  was  held  that  a  customer  paying  bills  not  due  into  his  bankers  in 

Central  Bank,  89  N.  Y.  182 ;  People  v.  City  Bank,  93  N.  Y.  582 ;  Nat.  Bank  v  Ilubbell, 
117  N.  Y.  384;  .Jockusch  v.  Towsey,  51  Tex.  129. 

But  see,  contra,  Re  Brown,  6  Morrell.  81  ;  First  Bank  v.  Armstrong,  36  Fed.  Rep. 
59;  Nurse  v.  Satterlee,  81  Iowa,  491;  Thompson  v.  Gloucester  Bank,  8  Atl.  R.  97, 
N.  J.  Eq.  (1887);  Arnot  v.  Bingham,  55  Hun,  553. 

Where  paper  is  sent  to  a  distant  bank  for  collection  and  remittance,  the  bank, 
according  to  the  following  cases,  does  not  become  a  debtor  upon  collection,  but  is  to 
be  treated  as  a  trustee  until  remittance  is  actually  made  either  in  specie  or  by  an  ap- 
proved draft.  Philadelphia  Bank  v.  Dowd,38  Fed.  Rep.  172  {semlile) ;  Harrison  Works 
V.  Coquillard,  26  111.  Ap.  513;  People  v.  Dansville  Bauk,-39  Hun,  187;  Bank  v. 
Weems,  69  Tex.  489. 

A  bank  collecting  the  paper  after  its  known  insolvency  has,  of  course,  no  right  to  use 
the  proceeds  as  its  own,  but  mu.st  hold  them  as  trustee.  German  Bank  v.  Third  Bank 
(U.  S.  C.  C.  1878),  18  Alb.  L.  ,J.  252;  Franklin  Bank  v.  Beal,  49  Fed.  Rep.  606,  607 
(semble) ;  Somerville  v.  Beal,  49  Fed.  Rep.  790;  Manufacturers'  Bank  v.  Continental 
Bank,  148  Ma.ss.  553;  .Jocku.sch  v.  Towsey,  51  Tex.  129. 

If  the  trustee  for  collection  sees  fit,  without  authority,  to  take  anything  else  than 
money  in  payment,  and  surrenders  the  paper,  the  depositor  should  have  the  right  to 
treat  the  transaction  as  a  collection  and  so  to  charge  the  bank  as  a  debtor.  Franklin 
Bank  v.  Beal,  49  Fed.  Rep.  006;  Harrington  v.  Merchants'  Bank,  17  Phila.  38.  See, 
contra,  Russell  v.  Hankey,  6  T.  R.  12  (followed  in  Ridley  ?;.  Blackett,  Peake,  N.  C. 
62,  but  questioned  in  Grant,  Banking,  4th  ed.  80) ;  Levi  v.  Nat.  Bank,  5  Dill.  104 ;  Stein- 
harte  v.  Nat.  Bank  (Cal.  1892),  29  Pac.  R.  717.  —  Ed. 


SECT.  I.]  MACKERSY  V.   EAMSAYS.  13 

the  country,  who  credited  their  customers  for  the  amount  of  such  bills 
if  approved  as  cash  (charging  interest),  was  entitled  to  recover  back 
such  bills  in  specie  upon  the  bankers  becoming  bankrupt,  the  balance 
of  his  cash  account,  independent  of  such  bills,  being  in  his  favor  at 
the  time  of  the  bankruptcy.  There  Lord  EUenborough  said,  "  Every 
man  who  pays  bills  not  then  due  into  the  hands  of  his  banker  places 
them  there  as  in  the  hands  of  his  agent,  to  obtain  payment  of  them 
when  due." 

LoKD  Ellenbokough.  Is  it  meant  seriously  to  contest  the  right 
of  the  assignees  to  recover  in  this  action?  The  bankers  were  the 
purchasers  of  this  bill.  They  did  not  receive  it  as  the  agents  of  All- 
port.  The  whole  property  and  interest  in  the  bill  vested  in  themselves, 
and  they  stood  all  risks  from  the  moment  of  the  discount.  If  the  bill 
had  been  afterwards  stolen  or  burned,  theirs  would  have  been  the  loss. 
In  Giles  v.  Perkins  the  bankers  were  mere  depositaries,  with  a  lien 
when  the  account  was  overdrawn.     The  customer  there  drew  upon  the 

"  credit  of  the  bills  deposited^  Here  Allport  might  have  drawn  out  the 
amount  of  the  bill,  deducting  the  discount,  as  actual  cash,  in  the  same 
manner  as  if  he  had  discounted  the  bill  with  a  third  person,  and  then 
paid  in  the  amount  in  bank  notes.  The  discount  maizes  the  bankers 
complete  purchasers  of  the  bill ;  the  transaction  was  completed  ;  the}' 
had  no  lien,  but  the  thing  itself;  the  bill  was  as  much  theirs  as  any 
chattel  they  possessed.  This  very  distinction  was  taken  in  the  case* 
cited  ;  for  it  was  there  said,  "  If  the  banker  discount  the  bill,  or  ad- / 

Ak^vance  money  upon  the  credit  of  it,  that  alters  the  case;    he  then  I 
acquires  the  entire  property  in  it,  or  has  a  lien  on  it  jvo  tanto  for  his 
advance."  Verdict  for  the  plaintiff} 


WIIJJAM  MACKERSY,  Appkllant,  v.   RAMSAYS,  BONARS, 

&  Co.,  Responuknts. 

Ix  THE  House  of  Lords,  March  2,  9,  1843. 

[Reported  in  9  Clark  ^  Finnelly,  818.] 

Lord  Campreij..^  I  am  of  opinion  that  the  interlocutor  of  the 
Lord  Ordinary  was  riglit,  and  tliat  th<!  judgment  of  the  Court  of  Ses- 
sion which  reversed  it  cannot  be  supported.  It  apiiears  that  Ivum- 
say  &  Co.,  of  Edinburgh,  in  the  way  of  their  l)usines9  as  bankers, 
were  employed  for  reward  by  a  customer,  witli  wliom  they  had  a  cash 
account,  to  obtain  payment  of  a  bill  of  exchange  drawn  on  a  person  in 
Cahiitta,  payable  to  tlieir  ordi-r.  They  did  not  become  the  owners  of  , 
the  l)ill,   or  discount  it,   but  they  were  to  receive  payment  of  it  flTHU  vi. 

1  III  l!r  Mach'.son  Bank,  .5  Riss.  .'il.'),  tlie  transaction  was  trcate<l  a.s  a  di.scount,  but 
on  vprv  ."^I'-ndpr  pviilencn.  —  En. 

-  The  concurring  opinion  of  Lord  Cotteuhum  and  the  arguments  of  counsel  are 
omitted.  —  Ed. 


1-i  MACKERSY  V.'  RA.MSAYS.  [CHAP.  I. 

]\Iaekersy,  having  a  lien  on  the  bill  and  its  proceeds  foi'  any  balance 
due  to  tlieni  from  him.  The  payment  was  to  be  made  to  persons  to  be 
employed  by  them,  to  whom  the  bill  nuist  be  indorsed.  Mackersy  was 
I  not  to  interfere  with  the  proceeds  of  the  bill  till  he  was  credited,  or 
entitled  to  be  credited,  by  them  for  its  amount.  They  employed  as 
their  agents  Coutts  &  Co.,  of  J.ondon,  who  employed  Alexander  & 
Co.,  of  Calcutta,  who  duly  received  payment  from  the  acceptor,  and, 
having  given  Coutts  &  Co.  credit  in  account,  five  months  afterwards 
became  bankrupt.  I  conceive  that  these  circumstances  amount,  in 
point  of  law,  to  a  payment  to  Ramsay  &  Co.,  and  that  they  were 
bound  to  place  the  amount  to  the  credit  of  Mackersy. 

The  general  rule  of  law,  that  an  agent  is  liable  for  a  sub-agent  em- 
ployed by  him,  is  not  confined  to  cases  where  the  principal  has  reason 
to  suppose  that  the  act  may  be  done  by  the  agent  himself  without 
employing  a  sub-agent ;  and  here  I  conceive  that  the  money  is  to  be 
considered  as  received  by  Coutts  &  Co.,  whose  correspondents  actu- 
ally received  it  at  Calcutta,  and  credited  them  "with  the  amount  five 
months  before  their  failure.  Mackersy  could  not  have  interfered  with 
the  money  either  in  the  hands  of  Alexander  &  Co.  or  of  Coutts  &  Co. 
There  was  no  privity  between  him  and  either  of  those  houses ;  but 
payment  to  Alexander  &  Co.  was  payment  to  Coutts  &  Co.,  arid  pay- 
ment to  Coutts  &  Co.  was  payment  to  Ramsay  &  Co.,  the  respondents. 
I  approve  of  the  expression  of  the  Lord  Ordinary,  when  speaking  of 
the  receipt  of  the  money  by  Coutts's  correspondents  at  Calcutta,  that 
"  at  that  moment  the  law  placed  it  to  the  credit  of  the  defender." 

The  judges  of  the  first  division  truly  say  that  Ramsay  &  Co.  had  not 
become  the  owners  of  the  bill.  If  by  vis  major ^  or  casus  fortuitus,  the 
bill  had  been  destroyed  before  it  reached  Calcutta,  or  if  Clelland,  the 
drawer,  had  become  insolvent  before  it  was  paid,  the  loss  would  not 
have  been  theirs.  But  they  might,  nevertheless,  be  agents  to  receive 
payment,  and  be  liable  for  the  amount  when  payment  had  been 
actually  received. 

"We  have  been  much  pressed  with  the  case  of  Campbell  v.  The  Bank 
of  Scotland,  decided  by  Lord  Moncrieff,  a  judge  for  whose  opinion  I 
should  entertain  as  much  deference  as  for  the  opinion  of  any  judge  in 
Scotland  or  England ;  but  the  facts  of  the  case  are  not  distinctly 
stated,  so  that  we  do  not  accurately  know  on  what  circumstances  that 
judgment  proceeded.  If  he  had  decided  that  in  a  case  like  this  the 
bankers  were  not  liable  for  the  money  received  by  their  coiTCspondents, 
I  should  have  been  bound  to  say,  with  all  respect,  that  he  had  come  to 
an  erroneous  conclusion. 

I  therefore  move  your  Lordships  that  the  interlocutors  of  the  first 
division  of  the  Court  of  Session  complained  of  be  reversed,  and  that 
the  interlocutor  of  the  Lord  Ordinary  assoilzieing  the  defender  with 
costs,  be  aflHrmed.^ 

1  Prince  V.  Oriental  Bank,  3  App.  Cas.  32.5,  335  {semhle) ;  Taber  v.  Perrot,  2  Gall. 
565;  Kenty.  Dawson  Bank,  13  Blatchf.  237;  Nat.  Bank  v.  Beal,  50  Fed.  Kep.  355 


SECT.  I.]      COMMERCIAL   NAT'L   BANK   V.   HAMILTON   NAT'L   BANK.  15 


COMMERCIAL  NATIONAL  BANK  v.  HAMILTON  NATIONAL 

BANK. 

In  the  United  States  Circuit  Court,  District  of  Indiana, 

July  15,  1890. 

[Reported  in  42  Federal  Reporter,  880.] 

At  Law. 

Lawrence  Maxwell  aud  Morris  &  Barrett,  for  plaintiff. 

Bell  &  3Iorris,  for  defendant. 

Gresham,  J.  In  April,  1884,  the  plaintiff  sent  to  Fletclier  &  Sharp, 
bankers  at  Indjanapolis,  a  draft  indorsed  :  "  Pay  to  the  order  of  Fen- 
ton,  for  collection,  on  account  of  Commercial  Bank."  Fentou  was 
Fletcher  &  Sharp's  cashier,  and  the  draft  was  sent  to  them  in  pursu- 
ance of  an  arrangement  entered  into  in  1883,  whereby  Fletcher  & 
Sharp  were  to  make  collections  for  the  plaintiff,  and  remit  balances  on 
the  1st  and  15th  of  each  month.  Fletcher  &  Sharp  indorsed  the  draft : 
"  Pay  to  the  order  of  John  Mohr,  Jr.,  cashier,  or  order,  for  collection, 

(semble) ;  Guelich  v.  Nat.  Bank,  5G  Iowa,  434,  437;  Simpson  v.  Walilhy,  G3  Mich.  439; 
Power  V.  First  Bank,  6  Mont.  251  ;  Commercial  Bank  v.  Union  Bank,  11  N.  Y.  203 ; 
Briggs  1-.  Central  Bank,  89  N.  Y.  182;  St.  Nicholas  Bank  v.  State  Bank,  128  N.  Y.  26  ; 
Keeves  c.  Bank,  8  Oh.  St.  465 ;  Young  v.  Noble,  2  Disney,  485 ;  Bradstreet  v.  Ever- 
son,  72  Pa.  124 ;  Merchants'  Bank  v.  Goodman,  109  Pa.  422,  17  Phila.  38,  s.  c. :  Fifth 
Bank  v.  Ash  water,  123  Pa.  212  Accord. 

Daly  V.  Butcliers'  Bank,  56  Mo.  94  ;  First  Bank  v.  Sprague  (Neb.  1892),  51  N.  W.  li. 
846  Contra. 

The  <lPcisions  are  hopelessly  irreconcilable  on  the  point  wliether  a  bank  emjiloyed 
as  an  agent  for  collection  is  lialile  t(j  tlie  j)rinciiial  for  a  loss  resulting  from  the  ladies 
of  a  sub-agent.  The  agent  is  liable,  according  to  the  following  autiiorities,  wheu  the 
sub-agent  is  a  bank  :  \'an  Wart  v.  Woolley,  3  B.  &  C.  439  ;  Kxcliangc  Hank  v.  Third 
Bank,  112  U.  S.  276;  Tyson  v.  State  Bank,  6  lilackf.  225  (sub-agent  was  a  brancli  of 
agent  bank) ;  American  Co.  ?'.  Ilaire,  21  Ind.  4  (semUe) ;  Montgomery  Bank  r.  All>auy 
Bank,  7  N.  Y.  459 ;  C.  Iv  Bank  v.  V.  N.  P>ank,  1 18  N.  Y.  443,  447  ;  and  in  Allen  r.  Mer- 
chants' Hank,  22  Weml.  215,  and  Ayrault  v.  I'acilic  Bank,  47  N.  Y.  570,  wiiero  the 
flub-agcnt  wa.s  a  notary. 

The  contrary  rule  is  maintained  in  the  following  cases  of  8ul)-agent  banks  :  Fa.st 
Ha<idani  i'.ank  i;.  Sco\  il,  12  Conn.  303;  7I':ina  Co,  v.  Alton  Bank,  25  HI.  243;  (Juc- 
lich  r.  Nat.  Bank,  56  Iowa,  434  ;  Lindsborg  Hank  v.  ()l)er,  31  Kas.  590;  .Jackson  v. 
Cnion  Bank,  6  Har.  &  .1.  146  ;  Fabens  v.  Mercantile  Bank,  23  I'ick.  330;  Dorchester 
n.-u.k  ,-.  N.  E.  IJank,  1  f:ush.  177;  Third  Hank  v.  Vicksburg,  61  Miss.  112;  Daly  i;. 
Butchers'  Bank,  56  Mo,  94  {scmhlf)  ;  Mechanics'  H.uik  r.  Earp,  4  Bawle,  384  ;  Morgan 
r.  'I'.iier.  83  Pa.  305,  307  (srmlilr) ;  Louisville  Hank  v.  First  Bank,  8  Baxt.  101  ; 
Second  Bank  v.  Cuinmings  (Tenn.  1892).  18  S,  W.  K.  115;  Stacy  r.  Dane  Bank,  12 
Wis,  629.  And  in  the  following  cases  where  the  sub-agent  was  a  notary:  Brittou  v. 
Niccoll.s,  104  r,  S.  757  ;  .May  v.  .Jones  ((Ja.  1891),  14  S.  E.  K.  5.52;  Hyde  c  I'limter.s' 
Bank,  17  La.  560;  B.aldwin  v.  La.  Bank,  1  La.  An.  13  ;  Frazicr  v.  N.  O.  Co.,  2  Itob. 
(La.)  294;  Citizens'  Hank  v.  Ilowell,  8  Md,  .5.30;  Warren  P.iink  v.  Suffolk  I5ank,  10 
Gush.  5S2  ;  Tiernan  v.  Conim.  Bank,  8  Miss.  648;  Agricultural  I?aiik  c,  Ciunni.  ISank, 
15  Mis.s.  .592;  Bowling  >•.  Arthur,  .34  Miss.  41  ;  Bank  v.  Butler,  41  Oil.  St.  519;  Bello- 
mire  v.  U.  S.  Bank,  4  Whart.  105.  —  Ed. 


16         COMMERCIAL  NAT'L   BANK   V.   HAMILTON   NAT'L   BANK.       [CIIAP.  L 

for  aocoiint  of  Fletcher  &  Sharp,"  — and  sent  it  to  the  defendant, 
whose  cashier  John  Mohr  was,  at  Fort  Wayne.  The  defendant  col- 
lected tlie  draft  on  ,Tuly  10,  1834,  and  the  same  day  credited  Fletcher 
&  Sharp  with  the  proceeds,  $3,-41)7;4i),  and  advised  theui  of  the  fact. 
On  receipt  of  this  advice,  July  11th,  Fletcher  &  Sharp  charged  the 
defendant,  and  credited  the  plaintiff,  with  the  amount,  and  notified 
the  latter.  This  notice  was  received  by  the  plaintitf,  July  r2th,  when 
it  charged  Fletcher  &  Sharp.  On  July  l.'ith  the  defendant  posted  a 
letter  ai  Fort  Wayne,  addressed  to  Winslow,  Lanier,  &  Co.,  bankers  at 
New  York,  directing  them  to  credit  Fletcher  &  Sharp  with  the  amount 
collected.  At  this  time,  and  for  several  years  previous,  the  defendant 
and  Fletcher  &  Sharp  had  made  collections  for  each  other  under  an 
arrangement  whereby  any  amount  due  from  one  to  the  other  was 
placed  to  tlie  latter's  credit  with  Winslow,  Lanier,  &  Co.,  with  which 
banking  firm  both  kept  accounts ;  but  the  plaintiff  had  no  knowledge 
of  this  arrangement.  The  defendant  in  good  faith  directed  that  the 
credit  be  given  to  Fletcher  &  Sharp  in  New  York,  not  knowing  that 
Ihey  were  indebted  to  Winslow,  Lanier,  &  Co.  Fletcher  &  Sharp 
failed,  and  ceased  to  do  business,  on  July  14th,  which  failure  was 
announced  in  the  evening  papers  of  Fort  Wayne  the  next  day,  after 
banking  hours,  not,  however,  until  after  the  defendant  had  posted  the 
letter  of  instruction  to  Winslow,  Lanier,  &  Co.  This  letter  was  re- 
ceived in  New  York  on  July  17th.  The  defendant  knew  of  the  failure 
of  Fletcher  &  Sharp  on  July  IGth  ;  and,  although  it  had  ample  time  to 
have  done  so,  it  failed  to  countermand  the  order  sent  by  mail  to  the 
New  York  banking  firm.  On  July  25th  the  plaintiff  addressed  a  letter 
to  the  defendant,  claiming  the  collection,  and  demanding  that  it  be  re- 
mitted. The  demand  was  refused,  and  this  suit  was  brought  to  recover 
the  amount. 

The  indorsement  to  Fletcher  «fe  Sharp  "for  collection"  authorized 
them  a'ld  their  indorsee  to  collect  the  draft  for  the  owner,  the  plaintiff. 
Fletcher  &  Sharp  received  the  draft  for  collection,  and  for  no  other 
purpose,  and  the  restrictive  character  of  the  indorsement  informed  the 
defendant  that  the  title  remained  in  the  plaintiff,  and  that  it  would  own 
the  proceeds  when  collected.  The  defendant  became  a  mere  sub-agent 
of  the  plaintiff  for  collection,  with  no  more  right  to  pay  the  proceeds 
to  Winslow,  Lanier,  &  Co.  than  Fletcher  &  Sliarp  would  have  had  if 
they  had  made  the  collection.  Fletcher  &  Sharp  acquired  no  property 
in  the  draft,  and  they  passed  none  to  the  defendant.  The  defendant, 
as  sub-agent  or  trustee  of  the  plaintiff,  was  bound  to  send  the  proceeds 
to  it  directl}',  or  through  Fletcher  &  Sharp.^  It  did  neither.  The  de- 
fendant claims  that  the  placing  of  the  amount  of.  the  collection  to  the 
credit  of  Fletcher  &  Sharp  on  the  books  of  Winslow,  Lanier,  &  Co.,  the 
charging  of  the  same  amount  against  the  defendant  by  Fletcher  & 
Sharp,  the  crediting  by  them  of  the  plaintiff  with  a  like  amount,  and  the 
charging  of  Fletcher  &  Sharp  by  the  plaintiff,  amounted  to  a  payment 

^  See  criticism  of  this  statement  in  4  Bank.  L.  J.  3.  —  Ed. 


SECT.  I.]      COMMERCIAL    NAT'L    BANK    V.    HAMILTON    NAT'l    BANK.         17 

by  the  defendant  to  the  plaintiff,  through  Fletcher  &  Sharp ;  that  the 
defendant  should  not  be  required  to  pa}-  the  mone}-  again  ;  and  that  the 
draft  and  its  proceeds  were,  in  all  respects,  treated  in  accordance  with 
lono-  and  well  established  custom  and  usage  among  banks  and  bankers. 
The  plaintiff's  indorsement  upon  the  draft  was  plain,  and  its  legal  force 
cannot  be  defeated  by  resort  to  usage  or  custom,  or  by  any  method  of 
book- keeping.^  In  discussing  the  effect  of  indorsements  of  this  charac- 
ter, the  Supreme  Court,  in  White  v.  Bank,  102  U.  S.  658,  said:  — 
■»  "The  language  of  the  indorsement  is  without  ambiguity,  and  needs 
'  no  exi)lanation,  either  b}-  parol  proof,  or  by  resort  to  usage.  The  plain 
meaning  of  it  is  that  the  acceptor  of  the  draft  is  to  pay  it  to  the  indor- 
see for  the  use  of  the  indorser.  The  indorsee  is  to  receive  it  on  account 
of  the  indorser.  It  does  not  purport  to  transfer  the  title  of  the  paper, 
or  the  ownership  of  the  money  when  received.  Both  these  remain,  b}' 
the  reasonable  and  almost  necessar}'  meaning  of  the  language,  in  the 
indorser.  ...  If  this  be  a  sound  view  of  the  legal  effect  of  the  written 
indorsement,  neither  parol  proof  nor  custom  can  be  received  to  con- 
tradict it." 

Instead  of  sending  the  money  directly  to  the  plaintiff,  or  through 
Fletcher  &  Sharp,  the  defendant  sent  it  to  Winslow,  Lanier,  &  Co.,  in 
New  York,  not  for  the  plaintiff,  but  to  the  credit  of  Fletcher  &  Sharp. 
It  was  a  violation  of  the  i)lain  terms  of  the  plaintiff's  indorsement  to 
thus  treat  the  draft  and  its  proceeds  as  the  property  of  Fletcher  & 
Sharp.  The  defendant  sent  no  money  to  New  York  to  be  credited  to 
Fletcher  &  Sharp.  It  simply  instructed  Winslow,  Lanier,  &  Co.,  by 
letter,  to  charge  it,  and  credit  Fletcher  &  Sharp  with  an  amount  equal 
to  the  collection  ;  and  if  the  letter  of  instruction  left  Fort  Wayne  before 
the  defendant  knew  of  the  failure  of  Fletcher  &  Sliarp,  the  defendant 
knew  of  the  failure  in  ample  time  to  have  sent  a  despatch  countermand- 
ing the  instruction. 

Finding  and  judgment  for  the  plaintiff  for  the  amount  collected 
with  interest."^ 

*  Sweeny  v.  Easter,  I  Wall.  17.3;  Dank  of  the  Metropolis  v.  First  Nat.  Bank  of 
Jersey  City,  19  Fed.  Hep.  303 ;  Bank  v.  Armstrong;,  39  Fed.  Hep.  684  ;  First  Nat.  Bank 
V.  Hcno  Co.  Bank,  3  Fed.  Hop.  257  ;  BlaiiKi  r.  Bourne,  11  H.  I.  119  ;  Bank  v.  Ihilibell, 
•22  N.  !•:.  Hep.  lO.n  ;  I'ar.sons,  Notes  &  Bills,  §  143. 
yy  2  If  the  owner  of  a  hill  deposits  it  with  an  agent,  i.  e.  a  trustee,  for  collection,  indi- 
cating hy  the  words  "  for  colloction  "  or  otlu-rwise  his  interest  in  the  hill,  and  tho 
agent,  in  duo  course,  transfers  the  l)ill  to  a  sni)-agent  for  collection,  and  Ixfon'  collec- 
tion the  agent  becomes  bankrupt,  tho  owner  of  tho  i)ill  is  entitled  to  reclaim  tho  hilL 
or  its  jToceeds  from  the  sub-agent,  without  regard  to  the  state  of  the  accounts  between 
tho  agent  and  sub-agent.  Sweeny  v.  Kiuxtor,  1  Wall.  IGO;  First  Bank  v.  Heiio  Hank, 
3  Fcl.  Hep.  2.')7  ;  Metropolis  Bank  v.  First  Bank,  19  Fed.  Hep.  301  ;  First  Bank  v. 
Armstrong,  .39  Fed.  liep.  231  ;  Fifth  fJank  v.  Armstrong,  40  Fed.  Itep.  46;  First  Hank 
».  ArmstrDUg,  42  Fed.  Hep.  193  ;  I'eck  r.  First  Bank,  43  Fed.  Hep.  S.")?  ;  Centnil  Co. 
V.  First  Bank.  73  Cia.  383;  First  Bank  v.  First  Hank,  70  Ind.  ."iOl  ;  Union  H.ink  v. 
Johu.son,  9  Gill  &  .1.  297  ;  Cecil  Hank  v.  Farmers'  Bank,  22  Md.  I4H  ;  M.inufacturers' 
Bank  v.  Continental  Bank,  148  Mass.  .5.53;  Freeman's  Hank  v.  National  Co.,  l.'il  Mass. 
413;  Warner  f.  Lee,  6  N.  Y.  144;  Naaon  i-.  First  Bank,  116  N.  Y.  492;  Producers' 

a 


IS        COMMERCIAL  NAT'L   BANK   V.   HAMILTON    IsAT'L   BANK.       [CHAP.  I. 

Bank  v.  Ricketts,  1  W.  N.  (Pa.)  48;  Blaine  v.  Bourne,  11  R.  L  119;  Sherman 
Bank  v.  Weiss,  67  Tex.  331. 
>  See  also,  to  the  same  effect,  Kalteiibach  v.  Lewis,  10  App.  Cas.  617.  (A  sub-factor 
received  proceeds  of  goods  after  the  baukruptcy  of  factor  and  knowledge  thereof,  and 
with  notice  of  the  principal's  claim.) 
^  In  accordance  with  the  decision  in  the  principal  case,  that  the  owner's  rights  are 
the  same  altliough  the  agent  becomes  bankrupt  a/kr  collection,  see  Levi  v.  Nat. 
Bank,  5  Dill.  104;  Re  Armstrong,  33  Fed.  Hep.  40.5;  First  Bank  v.  Bank,  33  Fed. 
Rep.  408 ;  Commercial  Bank  r.  Armstrong,  39  Fed.  Kep.  6S4  ;  Nat.  Bank  v.  Beal,  50 
Fed.  Kep.  3.5.5  ;  Armstrong  v.  Nat.  Bank  (Ky.  1890),  14  S.  W.  K.  411.  In  Freen'ian 
J'.  Exchange  Bank,  87  Ga.  45,  a  creditor  of  the  depositor  was  allowed  to  garnishee 
the  sub-agent  after  collection,  but  before  remittance  to  the  agent.  Compare  Fourth 
Bank  v.  Mayer  (Ga.  1892),  6  Bank.  L.  J.  479 ;  Naser  v.  First  Bank,  116  N.  Y.  492. 
^  On  the  other  hand,  the  original  owner  did  not  prevail  against  the  creditors  of  the 
bankru})t  agent  in  Hyde  v.  First  Bank,  7  Biss.  156.  See  Freeman's  Bank  v.  Nat.  Co., 
151  .Mass.  41.3,  418. 

jT  If  the  agent,  as  a  del  credere  factor,  holds  the  claim  against  the  sub-agent  as  a  trus- 
tee for  the  depositor,  the  sub-agent  is  obviously  not  entitled  to  make  use  of  any  claim 
against  the  agent  by  way  of  set-off,  to  the  prejudice  of  the  depositor. 
t,  If  the  owner  of  a  bill  deposits  it  with  an  agent,  i.  e.  a  trustee,  for  collection,  but 
without  indicating  the  trust  on  the  bill,  and  the  agent  in  the  natural  course  of  business 
transfers  the  bill  to  a  sub-agent  for  collection,  to  be  held  and  credited  on  the  account 
between  the  agent  and  .sub-agent,  and  then  the  agent  becomes  bankrupt,  being  indebted 
to  the  sub-agent,  the  principal  cannot  reclaim  the  bill  or  its  proceeds  from  the  sub- 
agent,  in  jurisdictions  where  a  transferee  on  account  of  an  antecedent  debt  is  treated 
as  a  purchaser  for  value  without  notice.  Johnson  v.  Robarts,  10  Ch.  505;  Bank  of 
Metrop.  V.  N.  E.  Bank,  1  How.  234,  6  How.  212,  s.  c. ;  (but  see  Wilson  v.  Smith,  3 
How.  763;)  Vickrey  v.  State  Association,  21  Fed.  Rep.  773;  Wyman  v.  Colo.  Bank, 
5  Col.  30;  Coors  v.  German  Bank,  14  Col.  202;  Rathbone  v.  Sanders,  9  Ind.  217; 
Wood  ('.  Boyl-ston  Bank,  129  Mass.  358;  Cody  v.  City  Bank,  55  Mich,  379;  Edson  v. 
Angell,  58  .Mich.  336  ;  Hoffman  v.  First  Bank,  46  N.  J.  604  ;  Carroll  v.  Bank,  30  W. 
Va.  518.  (But  see,contra,  Lawrence  v.  Stonington  Bank,  6  Conn.  521  ;  Miller  v.  Farm- 
ers' Bank,  30  Md.  392 ;  First  Bank  v.  Strauss,  66  Miss.  479 ;  Millikin  v.  Shapleigh, 
36  yio.  596  ;  Bury  v.  Woods,  17  Mo.  Ap.  245.)  For  the  same  reason,  where  goods  are 
consigned  to  a  factor  for  sale,  and  by  tiie  factor,  in  due  course,  to  a  sub-factor,  who 
sells  and  receives  the  proceeds  before  the  factor's  baukruptcy,  and  in  ignorance  of  the 
original  coiisignor's  interest  in  the  goods,  the  sub-factor  is  entitled  to  apply  the  pro- 
ceeds  in  satisfaction  of  any  claim  he  may  have  against  the  factor.  New  Zealand  Co. 
V.  Watson,  7  Q.  B.  Div.  374. 

y  In  jurisdictions  where  one  who  takes  negotiable  paper  on  account  of  an  antecedent 
debt  is  not  treated  as  a  purchaser  fot  value,  the  principal  is,  of  course,  entitled  to 
recover  the  bill,  if  it  is  still  uncollected  and  in  the  hands  of  the  sub-agent.  Van  Amee 
V.  Troy  Bank,  8  Barb.  312  ;  Scott  v.  Ocean  Bank,  23  N.  Y.  289 ;  Hoffman  v.  Miller,  9 
Bosw.  334;  Commercial  Bank  v.  Marine  Bank,  3  Keyes,  337  ;  Dod  v.  Fourth  Bank, 
59  Barb.  265;  Stark  v.  U.  S.  Bank,  41  Hun,  506;  First  Bank  v.  Gregg,  79  Pa.  384; 
Hackett  i-.  Reynolds,  114  Pa.  328.  And  after  collection  the  principal  may  enforce  the 
sub-agent's  liability  as  debtor  to  the  agent  without  any  deduction  by  way  of  set-off  of 
any  debt  due  from  the  agent  to  the  sub-agent.  McBride  v.  Farmers'  Bank,  26  N.  Y. 
450;  Dickenson  v.  Wason,  47  N.  Y.  439;  West  v.  American  Bank,  44  Barb.  175; 
Lindauer  v.  Fourth  Bank,  55  Barb.  7.'j ;  Jones  v.  Milliken,  41  Pa.  252.  —  Ed. 


SECT.  L]  ex   parte   BROAD.      IN   RE  NECK.  19 

Ex  Parte  BROAD.     In  Re  NECK. 

Ix  THE  Court  of  Appeal,  July  18,  1884. 

[Reported  in  13  Queen's  Bench  Division,  740.] 

This  was  an  appeal  from  an  order  made  by  Mr.  Registrar  Hazlitt, 
on  the  24th  of  April,  1884,  directing  the  trustee  in  the  liquidation  of 
J.  F.  Neck  to  pay  J.  Thomsen,  of  Bergen,  in  Sweden,  out  of  the  assets 
of  the  debtor,  the  sum  of  £450,  being  the  amount  of  a  draft  drawn  by 
Thomsen  on  Westenholz  Brothers  of  London,  dated  the  13th  of  July, 
1883,  payable  at  sight,  and  which  was  remitted  by  Thomsen  to  Neck 
for  the  purpose  of  taking  up  a  bill  of  exchange  drawn  by  Thomsen  on 
Neck,  dated  the  19th  of  April,  1883,  and  accepted  by  Neck. 

Neck  had  carried  on  the  business  of  a  foreign  banker  and  merchant 
in  the  city  of  London.  Thomsen  carried  on  business  at'  Bergen,  in 
Sweden,  as  a  merchant,  under  the  firm  of  Gottlieb  Thomsen.  For 
some  years  Neck  had  been  in  the  habit  of  accepting  for  the  accommo- 
dation of  Thomsen  bills  drawn  on  him  by  Thomsen.  The  course  of 
business  was  thus  described  in  an  aflidavit  made  by  Thomsen:  "  For 
some  years  past  I  have  been  accustomed  from  time  to  time  to  draw 
l)ills  upon  Neck  at  three  months  date,  which  he  has  accepted,  and 
before  the  due  dates  of  such  bills  it  has  been  my  invariable  custom  to 
remit  funds  to  Neck  to  cover  my  drafts  as  they  respectively  matured." 
Thomsen  further  said  :  "  On  the  19th  of  April,  1883,  I  drew  a  bill  for 
f 4.50  on  Neck,  payable  to  the  order  of  Bergen's  Private  Bank,  at  three 
months  date,  which  bill  was  accepted  by  Neck,  and  was  made  payable 
at  his  bankers'  in  the  city  of  London.  The  said  bill  matured  on  the 
21st  of  July,  1883  (the  22d  of  that  month  falling  on  a  Sunday).  On 
the  13th  of  July,  1883,  I  remitted  to  Neck  a  draft  for  £450,  upon 
Westenholz  Brothers  of  London,  at  sight,  which  I  am  informed  and 
believe  was  received  by  Neck  on  the  17th  of  July,  1883.  I  am  also 
informed  and  believe  that  the  draft  upon  Westenholz  Brothers  was 
accepted  by  that  firm,  and  was  paid  by  Neck  to  his  account  with  his 
bankers  on  the  day  it  was  received,  and  tliat  it  was  duly  collected." 

On  Uie  20th  of  July,  1883,  Neck  stopped  payment,  and,  when  the 
bill  for  £150  which  he  had  accepted  was  presented  the  next  day  to  his 
bankers  for  payment,  y)ayment  was  refused. 

Neck  made  an  aflidavit  in  which  he  said :  "  Thomsen  was  well 
,  aware  from  time  to  time,  when  he  remitted  to  me  bills  to  meet  my 
"'  acceptances  on  his  account  and  for  his  accommodation,  that  I  was  in 
the  habit  of  discounting  sucli  bills  remitted  by  him,  although,  as  ii 
mattf-r  of  fact,  I  somolimfs  did  not  discount  such  bills  forthwith,  l)ut 
retained  the  same  until  it  was  convenient  to  me  to  discount  them.  In 
any  event  it  was  the  arrangement  between  us  that  I  should  del)it  him 
with  interest  at  the  rate  of  five  per  cent  per  annum  in  respect  of  moneys 
paid  by  me  for  the  purpose  of  p.aying  my  credit  acceptances  as  afore- 
said, and  credit  him  with  interest  at  the  same  rate,  from  the  due  dates 
of  any  remitted  bills,  in  respect  of  rny  moneys  which  *vere  the  pro 


20  EX  PAllTE  BROAD.      IN  RE  NECK.  [CIIAP.  L 

ceeds  of  bills  remitted  by  him.  It  was  my  custom  to  render  accounts 
to  Thomson  annually,  and  such  accounts  were  made  up  to  the  31st  of 
December  in  each  year,  and  the  balance  of  interest  was  either  debited 
or  credited,  as  the  case  might  be,  in  the  accounts  so  rendered." 

Neck's  books  showed  that  the  accounts  between  himself  and  Thom- 
sen  were  kept  in  the  manner  thus  described. 

The  letter  dated  the  13th  of  July,  1883,  in  which  Thomsen  sent  to 
Neck  the  bill  for  £450  on  "Westenholz  Brothers,  contained  the  follow- 
ing passage  :  "  Enclosed  I  beg  to  remit  £450  at  sigiit  on  Westenholz 
Brothers,  which  please  encash  to  my  credit."  In  a  letter  dated  the 
18th  of  July,  1883,  written  by  Neck  to  Thomsen,  he  said  :  "  We  are 
in  receipt  of  your  favor  of  the  13th  inst.  handing  a  check  for  £450 
for  17th  inst.  on  Westenholz  Brothers,  which  is  noted  to  the  credit  of 
your  account."  In  the  book  of  "  bills  receivable  "  kept  by  Neck,  the 
bill  on  Westenholz  Brothers  was  entei'ed  as  received  on  Thomsen's 
account.  On  the  14th  of  November,  1883,  Neck  filed  a  liquidation 
petition,  under  which  his  creditors  resolved  on  a  liquidation  by 
arrangement,  and  appointed  a  trustee. 

The  trustee  appealed  from  the  Registrar's  order. 
Sidney  Wool/,  for  the  appellant. 
J.  E.  Linklater,  for  Thomsen.^ 

Cotton,  L.  J.  I  also  am  of  opinion  that  the  appeal  must  be 
allowed.  We  have  to  deal  with  the  proceeds  of  a  remittance  made 
by  the  customer  to  the  debtor  which  had  been  cashed  before  the 
debtor's  stoppage,  not  with  a  bill  which  remained  in  specie  at  the 
time  when  the  stoppage  took  place.  If  the  bill  had  remained  in  spe- 
cie, the  matter  would  have  stood  upon  a  very  different  footing,  and, 
though  it  is  not  necessary  to  decide  the  point,  probably  the  customer 
might  then  have  been  entitled  to  say,  "  That  is  my  bill ;  I  have  paid 
your  acceptance,  therefore  hand  over  the  bill  to  me."  ^  But  what  really 
took  place  was  this.  A  few  days  before  the  stoppage  the  debtor 
cashed  the  bill,  and  now  the  customer  says,  "I  am  entitled  to  follow 
the  proceeds,  as  trust  money  specifically  appropriated  to  a  purpose 
which  has  not  been  performed,  and  therefore  the  money  ought  to  be 
handed  over  to  me."  In  my  opinion  he  is  not  so  entitled.  We  find 
that  tlie  course  of  dealmg  was  this.  Although  the  remittances  were 
made  by  the  customer  for  the  purpose  of  meeting  the  debtor's 
acceptances  on  his  account,  yet  the  debtor  cashed  or  discounted  the 
remittances  which  were  made  to  him,  and  carried  the  proceeds  to  the 
general  account  of  the  customer,  and  credited  the  customer  with 
interest  on  the  sums  which  he  had  thus  received  in  respect  of  the 
remittances. 

Now  in  In  re  Gothenburg  Commercial  Co.,  Sir  G.  Jessel,  M.  R., 
said,  "The  bills  were  sent,  I  think,  originally  for  the  purpose  gen- 

'  The  arguments  of  counsel,  as  well  as  the  concurring  opinions  of  Lindley  and 
Baggallay,  L.  .JJ.,  are  omitted.  —  Ed. 

^  ilassall  y.  Smithers,  12  Ves.  119;  Ex  parte  Gomez,  10  Ch.  639  ;  Re  Gothenburg 
Co.,  29  W.  R.  358 ;  Ex  parte  Dever,  14  Q.  B.  Div.  611,  622  Accord.  —  Ed, 


SECT.  I.]  STUMORE   V.    CAMPBELL.  21 

erally  of  providing  funds  to  meet  the  acceptances,  and  for  no  other 
purpose,  with  this  right  of  discounting  and  appropriating  the  monej'.'* 
If  a  man  pays  interest  for  money,  he  must  be  entitled  to  the  use  of  it. 
"When  a  man  loclvs  up  money  which  is  intrusted  to  him  in  a  box,  he 
does  not  pay  interest  on  it.  I  thinli  we  must  judge  of  the  contract 
between  the  parties  from  the  course  of  dealing  and  from  the  accounts 
which  were  rendei'ed,  and,  looking  at  the  whole  course  of  dealing,  in 
my  opinion,  although,  so  long  as  the  remittance  remained  in  specie, 
the  customer  might  have  said,  "  Hand  it  over  to  me,"  yet,  looking  at 
the  accounts  rendered  from  time  to  time,  the  inference  is  that  the 
banker  was  to  be  at  liberty  to  put  himself  in  funds  by  cashing  the 
remittances,  and,  when  he  had  done  so,  to  treat  himself,  not  as  a 
trustee  of  the  proceeds  for  the  customer,  but  only  as  a  debtor  to  the 
customer  for  the  sum  which  he  had  thus  received.  In  my  opinion, 
interest  being  from  time  to  time  carried  to  the  credit  of  the  customer 
in  the  account,  the  banker  was  entitled  to  put  the  proceeds  into  his 
own  pocket,  not  keeping  them  separate  from  his  general  account. 

In  my  opinion,  therefore,  as  regards  the  proceeds  of  this  bill  which 
was  cashed  before  the  stoppage,  the  customer  must  come  in  and  prove 
as  a  creditor,  and  I  cannot  say  that  the  debtor  was  a  trustee  of  the 
money  for  him.  I  cannot  see  any  distinction  between  the  present 
case  and  In  re  Gothenburg  Commercial  Co.  Ap2>eal  allowed.^ 


STUMORE  V.  CAMPBELL  &  CO. 
In  the  Court  of  Appeal,  November  28,  1891. 

[Reported  in  (1892)  1  Queen's  Bench,  314.] 

* 

Appeal  from  the  judgment  of  A.  L.  Smith,  .J.,  on  an  interpleader  issue. 

The  plaintifl",  as  judgment  crditor  of  Colonel  Bett}',  deceased,  chiinied 
to  attach  a  sum  of  money  in  the  hands  of  the  defendants.  This  sum 
of  money  was  intru.sted  by  the  deceased  to  the  defendants,  who  were 
acting  as  his  solicitors,  to  be  handed  over  to  the  plaintiff  witli  a  bill  of 
exchange  wliicli  the  deceased  was  to  provide,  to  carry  out  an  arrange- 
ment by  which  the  money  and  bill  of  exchange  were  to  be  taken  in 
satisfaction  of  tlie  judgnicut.  This  arrangement  ))roke  down  by  rea- 
son of  the  death  of  Colonel  Betty  before  he  had  provided  the  bill  of 
exchange,  and  the  money  remained  in  the  hands  of  the  defendants. 
The  defendants  had  a  claim  for  law  costs  against  the  estate  of  the 
decease<\to  a  large  amount,  and  they  advanced  this  claim  as  an  answer 
to  tlie  plaintiff's  aiiplicution  for  an  onh^r  to  attacii  the  money  in  their 
hands.  An  issue  was  accordingly  directed  to  determine  whether  the 
defendants  were  indebted  to  the  estate  of  the  deceased.  The  learned 
judge  was  satisfied  that  the  claim  for  costs  was  in  excess  of  the  amount 

1  Tfiit  I'.  PnllfT,  .5  T.  1{.  404  ;  Bolton  v.  riillcr.  1  P..  &  P.  .')39 ;  Re  Gothenburg 
Co.,  a9  \V.  li  3J8;  Ex  parte  Devcr,  14  C^.  IJ.  Div.  611,  622.  —  Eu. 


22  STUMOUE  V.   CAMPBELL.  [CHAP.  I. 

of  tlie  mouej'  deposited,  and  he  held  that  the  defendants  would  be  en- 
titled to  coiuiter-claini  for  these  costs  in  an  action  b}'  the  executors  for 
repayment  of  the  money  deposited.  He,  therefore,  decided  that  they 
were  not  indebted  to  the  estate  of  tlie  deceased,  and  gave  judgment  in 
their  favor,  and  the  plaintiff  appealed. 

TV.  Fhipson,  for  the  plaintitT. 

Muir  Mackenzie^  (with  him,  R.  T.  Eekl,  Q.  C,)  for  the  defendants.' 

Lord  Esiikr,  M.R.  In  this  case  the  question  is  whether  the  defend- 
ants are  indebted  to  the  estate  of  the  deceased.  A.  L.  Smith,  J.,  has 
decided  that  they  are  not,  for  reasons  that  I  will  presently  notice  ;  but 
I  find  myself  unable  to  agree  with  the  learned  judge. 

It  appears  that  some  money  was  placed  in  the  hands  of  the  defend- 
ants, who  are  solicitors,  for  a  particular  purpose.  80  long  as  that  pur- 
pose existed  there  was  a  trust  imposed  on  them,  and  they  were  bound, 
if  they  accepted  the  money  at  all,  to  employ  it  or  lay  it  out  in  the  par- 
ticular way  indicated  by  the  trust.  That  trust  failed,  and  the  result  of 
that  failure  was  that  another  trust  arose  immediately  to  pay  back  the 
money  to  the  person  who  gave  it.  It  is  admitted  that,  being  trustees, 
no  lien  would  attach  in  their  favor,  because  the  money  was  intrusted 
to  them  for  a  specific  purpose.  Brandao  v.  Barnett^  is  conclusive  on 
this  point.  It  was  also  admitted  that  there  would  have  been  no  right 
of  set-off  in  an  action  before  the  Judicature  Acts  to  recover  this 
money;  —  such  a  plea  would  have  failed,  and  judgment  would  have 
been  for  the  full  amount.^  But  it  was  said  that  under  the  Judicature 
Acts  they  could  have  claimed  their  costs  by  way  of  counter-claim,  and 
the  learned  judge  has  held  that  for  this  reason  they  were  not  indebted 
to  the  estate  of  the  deceased.  The  Judicature  Acts,  as  has  been  often 
said,  did  not  alter  the  rights  of  parties  ;  they  only  affected  procedure, 
so  that  no  set-off  could  now  be  maintained  in  such  a  case  as  this.  Be- 
fore these  Acts  a  person  having  a  cross-claim  must  have  raised  it  by  a 
cross-action  ;  but  these  Acts  have  given  a  right  to  counter-claim.  In 
some  of  the  cases  language  has  been  used  which  would  seem  to  imply 
that  a  counter-claim  is  sometimes  in  the  nature  of  set-off  and  some- 
times not.  No  doubt  matter  is  occasionally  pleaded  as  counter-claim 
which  is  really  set-off ;  but  counter-claim  is  really  in  the  nature  of  a 
cross-action.  This  Court  has  determined  that,  where  there  is  a  counter- 
claim, in  settling  the  rights  of  parties,  tlie  claim  and  counter-claim  are, 
for  all  purposes  except  execution,  two  independent  actions. 

If  the  plaintiff  sustains  his  claim,  judgment  goes  for  him  on  that ; 
and  if  the  defendant  sustains  his  counter-claim,  judgment  goes  for  him 
on  that.  Either  claim  may  be  reduced  by  set-off.  But  if  the  plaintiff 
succeeds  in  the  one  case  and  the  defendant  in  the  other,  there  are  two 
judgments  which  are  independent  for  all  purposes  except  execution. 
Wills,  J.,  in  Westacott  v.  Bevan,"*  has  said  that  this  Court  must  be 

*  The  arguments  of  counsel  and  the  concurring  opinions  of  Lopes  and  Kay,  L.  JJ, 
are  omitted  —  Ed. 

2  12  CI.  &  F.  787.  4  (1891)  1  Q.  B.  774. 

•  But  see  Gannon  v.  Ruffiu,  151  Mass.  204,  206  (semble)  Contra.  — Ed. 


SECT.  I.]  COMMONWEALTH   V.   FOSTER.  23 

taken  to  have  held  that  these  judgments  are  only  sepai'ate  for  the 
pui-pose  of  determining  the  taxation  of  costs ;  but  that  is  a  misinter- 
pretation of  what  this  Court  has  said.  Execution,  as  formerly  in  cross- 
actions,  is  issued  for  the  balance  and  in  favor  of  the  one  who  has  that 
balance,  and  tliis  applies  to  the  amounts  recovered,  and  also  to  the 
costs.  The  view  this  Court  has  taken  is  not  that  which  Wills  and 
Vaughan  Williams,  JJ.,  attribute  to  it,  though  it  is  very  probable  that 
their  decision  in  that  case  was  right.  The  consequence  is  that  the 
executors  could  have  obtained  a  judgment,  though  the  defendants 
might  have  had  judgment  on  their  counter-claim  for  a  larger  amount. 
There  is,  therefore,  a  debt  due  from  the  defendants  to  the  estate,  and 
the  plaintitf  is  entitled  to  attach  that  debt  under  a  garnishee  order. 
The  appeal  must,  therefore,  be  allowed.  Appeal  allowed.^ 


COMMONWEALTH  v.   WILLIAM  R.  FOSTER. 

In  tiir  Supreme  Judicial  Court,  Massachusetts,  March,  1871. 

[Reported  in  107  Massachusetts  Reports,  221.1 

IxDK'TMKN'T  for  embezzlement,  found  at  July  term,  1870,  of  the 
Suj^erior  Court  in  Suffolk. 

At  the  trial,  before  Wilkinson,  J.,  John  Langley  testified  that  about 
May  l."5,  1X70,  being  in  need  of  money,  he  made  two  promissory 
notes  payable  to  his  own  order  and  indorsed  by  himself,  payable  in 
four  and  six  montlis  rcspoctivcly,  for  §1,250  each,  and  delivered  them 
to  tlic  defendant  upon  tiie  special  agreement  of  the  defendant  to  sell 
the  notes  and  deliver  the  proceeds  to  Nathan  A.  Langley,  a  brother  of 
the  witness,  charging  a  commission  for  his  services  ;  that  at  the  same 
time,  and  as  a  part  of  tlie  transaction,  the  defendant  gave  to  the 
witness,  ns  receipts,  the  defendant's  own  notes  of  tlie  same  tenor  and 
date  as  liiose  deUvered  to  him  by  the  witness,  which  were  deposited 
by  the  witness  with  his  brother,  to  l)e  by  him  given  np  to  the  defend- 
ant wlien  tiie  latter  siiould  deliver  the  proceeds  of  the  witness's  notes 

'  Whon  money  I.h  deposited  to  he  ap[)Iied  in  spooi'e  for  a  Bpecific  pnrpose,  whidi  can- 
not lie  iU'('<iiii|ili.><iie(l,  tlie  tninsactioii  creates  a  triiHt  and  not  a  debt.  The  money, 
tlierefore,  cannot  lie  taken  hy  tiie  creditors  of  tlie  depositary.  'I'oovey  v.  Milne,  2  B.  & 
Ai.  683;  Mooro  c.  Barthrofi.  1  \i.  &  C.  .5;  Hrookville  Bank  v.  Deitz,  49  Ind.  598. 

The  rule  i«  the  name  where  the  depositary  iinpro[)erIv  fails  to  apj)ly  the  specific 
money  aa  directed,  e.  p  in  payment  of  a  <'laiiii  of  thi^  depositary  against  the  depositor. 
Lihhy  »'.  Hopkins,  104  U.  S.  .'JO.'J ;  Peak  c.  Kllicott,  .'<0  Kas.  1.56;  Ellicott  v.  Barnes.  .'U 
Kas.  17(1;  I'eople  v.  Oity  Bank,  W  N.  Y.  'J'J.     See  also  Jlarrison  v.  Smith,  83  Mo.  210. 

Money  received  hy  one  to  invest  for  another  in  ol/vionsly  a  trust  fund.  Tiie  remedy 
of  the  I.eneHciary  is  accordingly  in  eipiity  ;  Ciapp  v.  Emery,  9H  III  r>2.'i ;  and  not  al; 
law,  Davis  v.  Cohurn,  12H  Mass  377;  the  Statute  of  Limitations  does  nothegin  to  run 
until  the  trust  is  reputliated  to  the  knowledge  of  the  hetieliciary ;  Jones  i;  McDermott, 
114  Mass.  400;  and  the  moni-y.  tiiont^h  improperly  invested  hy  the  fi<lnciary,  m;iy  be 
followed  hy  the  i;--,tiii  «///«  /,//.s7  inli.  its  product.      Day  v.  lioth,  l»  N.  Y.  44b.  —  Eu. 


24  COMMONWEALTH   V.   FOSTER.  [CIIAP.  I. 

in  pursuance  of  the  agreement  before  stated ;  and  that  he  did  not 
know  whether  the  defendant  was  a  broker  or  not,  and  did  not  deal 
with  him  as  such. 

It  furtlier  appeared  that  tlie  defendant  sold  the  notes  of  John  Lang- 
ley  to  one  Wilson  for  $1,000  in  cash,  and  a  mortgage  on  real  estate 
valued  at  81,000  ;  and  that  he  had  not  delivered  any  part  of  the  pro- 
ceeds to  John  "Langley  or  his  brother,  but,  when  asked  for  them  by  the 
former,  replied  that  he  had  used  them  and  was  unable  to  deliver  them. 
It  did  not  appear  that  John  Langley  or  his  brother  had  tendered  to  the 
defendant  the  notes  given  by  him. 

Upon  the  close  of  the  evidence  for  the  Commonwealth,  the  defend- 
ant demurred  thereto,  as  insufficient  to  support  a  verdict  of  guilty  ; 
but  the  judge  overruled  the  demurrer.  The  defendant  then  testified 
that  he  was  a  real  estate  broker ;  and  that  he  negotiated  the  notes  in 
the  manner  testified  to  by  John  Laugley,  and  used  the  money,  partly 
in  business  a?,  a  provision  dealer,  in  which  he  was  also  engaged  at  the 
time,  and  partly  in  paying  his  debts. 

The  judge  thereupon  instructed  the  jury  "  that  it  was  a  question  of 
fact,  for  them  to  decide  upon  the  evidence,  whether  John  Laugley 
employed  the  defendant  as  a  broker ;  that  if  the  defendant  was  em- 
ployed merely  to  sell  the  notes,  receive  the  proceeds,  and  pay  over  the 
same  specifically  to  the  brother,  without  any  authority  to  mix  them 
with  his  own  funds,  a  fraudulent  conversion  of  them  would  be  embez- 
zlement ;  but  that  if  he  was  employed  as  a  broker  to  negotiate  the 
notes  in  the  course  of  his  business,  with  authority,  derived  from  the 
nature  of  that  business  or  otherwise,  to  mix  the  proceeds  as  aforesaid, 
his  use  of  them  would  not  be  embezzlement."  The  jury  returned  a 
verdict  of  guilty,  and  the  defendant  alleged  exceptions. 

C.  a.  Train,  for  the  defendant. 

C.  Allen,  Attorney  General,  for  the  Commonwealth. 

By  the  Court.  Under  the  instructions  given  them^  the  jury  must 
have  found  that  the  defendant  was  an  agent  within  the  statute,  and 
embezzled  his  employer's  money.  The  notes  given  by  him  appear  to 
have  been  given  to  answer  the  purpose  of  receipts,  and  not  for  the 
purpose  of  transferring  to  him  any  property  in  the  notes  received  by 
him,  or  the  money  received  by  him  on  the  sale  of  the  notes.  Com- 
monwealth V.  Stearns  ;  ^  Commonwealth  v.  Libbey.^ 

Exceptions  overruled.' 

1  2  Met.  343.  2  u  Met.  64. 

*  The  defendant  being  allowed,  in  the  following  cases,  to  use  as  his  own  the  money 
received,  and  becoming  thereby  a  debtor,  was  not  an  embezzler:  Kribs  v.  People,  82 
111.  425  (borrower) ;  Mulford  v.  People  (111.  1891 ),  28  N.  E.  R.  1096  (borrower) ;  Coinm. 
f.  Stearns,  2  Met.  343  (auctioneer  or  factor) ;  Comm.  v.  Libbey,  11  Met.  64  (general 
collection  agent);  Miller  v.  State,  16  Neb.  179  (selling  agent,  special  agreement); 
Webb  V.  State,  8  Tex.  Ap.  310  (selling  agent,  special  agreement). 

In  the  following  cases  the  defendant,  not  beiriL,'  allowed  to  use  as  bis  own  the 
money  received,  was  guilty  of  embezzlement:  Wallis  v.  State,  54  Ark.  611  (attor- 
ney) ;  Comm.  v.  Tuckerman,  10  Gray,  173  (trea.surer  of  corporation) ;  Comm.  v.  Smith, 
129  Mass.  104  (special  agent  for  collection) ;  People  i;.  Converse,  74  Mich.  478  (attor 
ney).  —  Ed. 


SECT.  I.]  WALLACE  V.   CASTLE.  25 


WALLACE  AMD  SONS,  Respondents,  v.  SAMUEL  A.  CASTLE 

AND  Others,  Appellants. 

In  the  Supreme  Court,  Generax  Term,  New  York,  April,  1878. 

[Reported  in  14  Eim,  106.] 

Appeal  from  an  order  made  at  the  Special  Term  denying  a  motion 
to  vacate  an  order  of  arrest. 

This  action  was  brought  to  recover  certain  moneys  collected  by  the 
defendants  on  the  sale  of  articles  sent  by  plaintiffs  to  them  for  sale  on 
commission. 

The  defendants  claimed  that  an  agreement  had  been  made  by  which 
they  were  not  to  account  for  articles  sold  by  them  during  each  month 
until  the  twentieth  of  the  succeeding  month.  An  affidavit  produced  in 
behalf  of  the  plaintiff  stated  : 

"  Deponent  further  says  that  on  the  ninth  day  of  August,  1875,  in 
pursuance  of  such  agreement  and  understanding,  he  called  on  the 
defendants  and  requested  the  defendants  to  pay  him  the  proceeds  of 
whatever  goods  they  had  sold  for  the  plaintiffs  up  to  that  time,  and  on 
that  day  they  gave  deponent  a  check  for  6137^6^^,  a  part  of  such  pro- 
ceeds, and  stated  that  they  had  sold  goods  for  and  on  account  of  the 
plaintiff  for  tlie  value  of  8G6Gy**jj6j,  which  amount  had  been  collected  ljy 
them. 

"  The  next  morning  deponent  again  called  and  saw  the  defendant 
Castle,  and  said  Castle  then  told  deponent  that  unexpectedly  something 
had  happened  after  deponent  saw  him  on  the  ninth  day  of  August  as 
aforesaid,  and  that  it  had  compelled  the  defendants  to  suspend  pay- 
ment, and  that  therefore  he  could  not  make  any  more  payments,  and 
could  not  give  deponent  a  check  or  pay  the  money  as  he  had  promised 
to  do. 

"  Deponent  tlien  called  on  the  defendant  Magrane  and  told  him  that 
the  defendant  Castle  had  told  deponent  that  he  (Castle)  could  not  pay 
the  money  they  had  collected  for  the  plaintiff,  and  which  they  owed 
jilaintiff,  on  account  of  the  defendants  having  suspended  payment. 
The  defendant  Magrane  then  said  to  deponent  that  the  plaintiff's 
account  ought  to  have  been  paid,  and  that  he  would  have  paid  it  if  he 
lia<l  charge  of  the  finances. 

"  Deponent  further  says,  that  on  the  twelfth  day  of  August,  1875, 
the  defendants  made,  and  at  3..'>5  p.  m.  of  that  day  filed  with  the  clerk 
of  the  city  and  county  of  New  York,  an  assignuicnt  for  the  benefit  of 
their  creditors,  and  deponent  i.s  informed  and  believes  that  tiieir  prop- 
erty will  not  pay  more  than  twenty-five  cents  on  the  dollar.  That 
an  action  has  been  commenced  in  this  court  in  favor  of  the  plaintiff 
against  the  defendants  tipon  the  cause  of  action  hereinbefore  set  forth, 
to  recover  the  said  sum  of  SOGG^j/b  ^'^^  interest  from  August  10,  1875, 


26  WALLACE  V.   CASTLE.  [CHAP.  L 

and  the  defendants  have  all  appeared  therein,  but  no  judgment  has  yet 
been  entered  therein." 

The  defendants  claimed  that  nothing  was  due  to  the  plaintiffs  at  the 
time  of  conunonc'ing  the  action,  as  the  20th  of  August  luid  not  tlieu 
arrived,  and  that,  as  they  sold  under  a  del  credere  commission,  they 
were  not  obliged  to  pay  over  the  identical  money  received,  and  couhi 
not  therefore  be  arrested  for  a  conversion  of  it. 

Tiie  following  is  the  opinion  delivered  at  the  Special  Term  by 
Barrett,  J.  : 

*■'•  In  Ostell  V.  Brough,^  it  was  held  that  a  del  credere  commission 
does  not  necessarily  destroy  the  factor's  fiduciary  relation.  If  he  has 
actually  received  the  proceeds  of  the  sale,  he  is  liable  to  arrest  for  a 
faihire  to  pay  them  over.  If,  however,  he  has  not  received  such  pro- 
ceeds and  is  sued  upon  his  guaranty,  he  is  not  liable  to  arrest.  The 
case  was  cited  with  approval  in  The  German  Bank  v.  IMwards,*^  and 
in  Duguid  v.  Edwards.^  The  point,  too,  was  there  directly  involved, 
while  in  Sutton  v.  De  Camp  *  it  appeared  that  the  defendants  '  had 
not  received  any  part  of  the  proceeds  of  the  sale.'  It  is  true  that 
the  principal  must  show  himself  entitled  to  the  specific  moneys  collected 
by  his  factor.  (Liddell  v.  Paton  ;  ^  Morange  v.  Waldron.*^)  But  he  has 
done  this  when  the  relation  of  principal  and  factor  is  made  out,  and 
the  burden  is  then  upon  the  latter,  if  he  would  relieve  himself  from 
his  ordinary  responsibility,  of  showing  some  special  agreement  or 
bringing  home  to  the  principal  some  course  of  dealing  inconsistent 
with  the  strict  relation.     (Duguid  v.  Edwards,  above  cited.) 

"  This  brings  to  us  a  consideration  of  the  papers.  Under  the  above 
test,  the  plaintiffs  made  out  a  clear  case  for  an  order  of  arrest.  The 
defendants'  papers  nowhere  show  any  affirmative  agreement  giving 
them  the  right  to  mingle  the  proceeds  of  the  sales  with  their  own 
moneys.  They  simply  aver  the  absence  of  a  special  agreement  to 
remit  the  identical  moneys  collected ;  but  that,  as  we  have  seen,  is 
implied,  and  it  was  for  them  to  establish  the  converse.  Nor  do  they 
show  a  custom  to  that  effect,  of  which  the  plaintiff's  had  knowledge. 
True,  the  defendants  remitted  to  plaintiffs  from  time  to  time,  by 
checks  upon  a  particular  bank  ;  but  there  is  no  evidence  that  plaintiffs 
knew  that  such  checks  were  drawn  against  defendants'  general  balance. 
Noil  constat,  they  believed  that  the  checks  were  drawn  against  special 
deposits  of  the  proceeds  of  the  sale.  As  to  the  claim  that  credit  was 
given  until  the  twentieth  of  each  month  following  the  sales,  it  might 
be  sufficient  to  say  that  this  was  disposed  of  by  the  General  Term, 
adversely  to  the  defendants,  upon  the  appeal  from  tlie  order  vacating 
the  attachment.  But  it  is  quite  evident  upon  all  the  proofs  that  no 
agreement  was  made  upon  the  subject,  and  that  it  was  a  mere  under- 
standing to  the  effect  that  for  mutual  convenience  plaintiffs'  agent 
would  not  call  from  day  to  day  for  small  sums  (as  collected),  but 

1  24  How.  Pr.  274.  2  53  n.  Y.  541.  »  50  Barb.  288. 

*  4  Abb.  N.  s.  483.  6  7  Hun,  196.  6  6  lluu,  529. 


SECT.  I.]  WALLACE   V.    CASTLE.  27 

would  take  then  ono  lump  sum  upon  the  twentieth  of  each  month. 
The  right  to  call  and  collect  from  day  to  day,  however,  remained  ; 
this  disposes  of  the  main  question.^ 

"  The  motion  to  vacate  the  order  of  arrest  must  therefore  be  denied, 
with  ten  dollars  costs." 

JBart  &  Bamburger,  for  the  appellants. 

A.  R.  Dyett,  for  the  respondent.  i^ 

Brady,  J.  The  opinion  of  Justice  Barrett  satisfactorily  disposes 
of  this  appeal  on  the  facts  and  the  law.  The  defendant  was  a  factor, 
and  although  entitled  to  del  credere  commission  his  character  was  not 
changed.  His  responsibility  and  his  compensation  were  enlarged,  but 
that  was  in  fact  and  in  law  the  only  chauge  accomplished  by  the  agree- 
ment del  credere.  He  guaranteed  the  payment  of  the  sum  for  which 
the  goods  were  sold,  but  his  liability  did  not  accrue  uutil  the  purchaser 
failed  to  pay.  In  this  case  the  payment  was  made,  and  the  contract 
of  liability,  therefore,  occurring  through  the  del  credere  commission, 
was  not  called  into  existence. 

The  relation  of  factor  continued,  with  all  its  obligations  and  bur- 
dens. The  money  received  was  the  plaintiff's  money  and  not  the 
defendant's.  It  came  from  the  plaintiff's  debtor,  and  should  have  been 
paid  to  the  plaintiff  as  his  fund,  whatever  its  amount,  less  the  com- 
missions earned.  The  identical  money  received  was  therefore  the 
property  of  the  plaintiffs.  See  Duguid  v.  Edwards,^  cited  by  Judge 
Bakkktt. 

Order  affirmed,  with  ten  dollars  costs  and  disbursements  of  this 
appeal. 

Davis,  P.  J.,  and  Ingali.s,  J.,  concurred.  , 

Order  affirmed^  ivitlt  ten  dollars  costs  and  disbursements.^ 

1  Onlv  so  much  of  the  opinion  is  given  as  relates  to  this  question.  —  Ed. 

2  50  a-irb.  ]{ep.  297. 

■''  Defendants,  using  as  their  own  money  received  from  another,  have  been  held 
liable  to  arrest  as  fiilnciarios  in  the  following  cases. 

Factors.  — SihwUU-T  v.  Sliiclis,  17  How.  I'r.  420;  Ostoll  c.  Brough,  24  How.  rr.274' 
Duguid  V.  Edwards,  50  Barb.  2P8  (reversing  s.  c.  32  How.  Pr.  254)  ;  Farmers'  Bank  t. 
Spraguf,  52  N.  Y.  605  {spiiiUp);  Standard  Refinery  v.  Dayton,  70  N.  Y.  480;  Kelly 
V.  Scripture,  9  Ilun,  28.3;  Williams  Co.  v.  Kaynor,  .38  Wis.  119. 

Auctioneers.  —  Crowther  v.  Elgood,  34  Ch.  Div.  091  ;  Ilulbrook  v.  Homer,  6  How- 
I'r.  86. 

Other  Aqenis  to  .se//.  —  Hntdiinson  v.  Hartmont,  W.  N.  [1877],  29  ;  Harris  v.  In 
gram,  1.3  Ch.  D.  338;  Dunabcr  v.  Meyer,  1  Code  Bcp.  87;  Kidder  v.  Wiiit!o<  k,  12 
How.  I'r.  208  ;  Turner  v.  'rbompson,  2  Abb.  Pr.  444  ;  Barret  v.  Gracic,  34  Barb.  20; 
Wolfe  V.  Brouwer.  5  Robt.  001  ;  Travers  v.  Dcaton,  107  N.  Ca.  500. 

Aijcnin  lo  1)111/. —  Noble  i'.  Trcscott,  4  H.  I).  Sni.  139;  Dnliois  r.  Thompson,  1  Daly, 
309 ;  Clark  i'.  I'inckney,  .'iO  Uarb.  220  ;  Obrcgun  v.  Do  Micr,  52  How.  I'r.  35^. 

Af/enls  to  collect.— UuMu'hl  v.  Jones,  .36- Ch.  D.  5.30;  Re  Gent,  40  Ch.  D.  190; 
Stoll  )'.  King,  a  How.  Pr.  298;  Frost  v.  McCarger,  14  How.  Pr.  131  ;  Hall  v.  MclNIabon, 
10  Abb.  I'r.  319;  Johnson  r.  Whitman,  10  Abb.  i'r.  N.  s.  Ill  ;  Power  v.  D:ivenjiorL, 
101  N.  Ca.  280. 

Ai/rnts  In  prii/  ont.  —  Burhans  V.  Casey,  4  Samlf.  707;  Repub.  of  Mexico  v.  Do 
Arangoiz,  5  Duor,  034  ;  Roberts  v.  Pro.«scr,  .53  N.  Y.  200. 

If  by  the  understanding  of  the  parties  the  receiver  of  the  money  has  the  right  to 


i 


28  WALLACE   V.    CASTLE.  [CHAP.  I. 

mix  it  with  his  own,  and  exercises  his  ripht,  he  hecomcs  a  dehtor,  and  is  therefore  not 
liable  to  arrest  as  a  fiduciary,  as  iu  the  followiut?  eases. 

Bankers.  —  Bussing  v.  Thompson,  6  Duer,  696  ;  Buchanan  Co.  v.  Woodman,  1  Hun, 
639  ;  Graeffe  v.  Carrie,  52  N.  Y.  Sup'r  Ct.  554. 

Factors.  —  Goodrich  c.  Dunt)ar,  17  Barb.  644;  Sutton  v.  De  Camp,  4  Abb.  I'r. 
N.  8.  483 ;  Donovan  v.  Cornell,  3  How.  Pr.  n.  s.  525. 

Auctioneers.  —  Morange  v.  Waldron,  6  Hun,  529. 

Other  Afjents  to  sell.  —  McBuruey  v.  Martin,  6  Kobt.  502;  Liddell  v.  Paton,  7  Hun, 
195  ;  Robbins  v.  Falconer,  43  N.  Y.  Sup'r  Ct.  363 ;  Decatur  v.  Goodrich,  44  Hun,  3. 


DiscH.iRGE  IN  Bankruptcy. — Fiduciary  obligors  are,  in  general,  not  allowed  to 
plead  their  discharge  in  bankruptcy  as  a  bar  to  subsequent  suits  by  the  obligees.  It 
would  seem  that  the  word  "  fiduciary  "  in  bankrupt  laws  should  receive  the  same  in- 
terpretation which,  as  we  have  seen,  is  given  to  it  in  the  statutes  allowiug  arrest. 
This  view  was  strongly  put  by  Sir  George  Jessel  in  Emmalo  v.  Grant,  17  Ch.  D.  122, 
123-129,  and  is  supported  by  the  following  cases  in  this  country,  in  which  the  discharged 
bankrupt  continued  liable. 

Factors.  —  Be  Seymour,  1  N.  B.  R.  29  ;  Re  Kimball,  6  Blatchf .  292  ;  Meador  v. 
Sharpe,  14  N.  B.  R.  492  ;  Gilreath  v.  Holston  Co.,  67  Ga.  702 ;  Banning  v.  Bleakley,  27 
La.  An.  257;  Brown  v.  Garrard,  28  La.  An.  870;  Desobry  v.  Tete,  31  La.  An.  809; 
Lemcke  v.  Booth,  47  Mo.  385  ;  Whittaker  v.  Chapman,  3  Lans.  155 ;  Hardenbrook  v. 
Cpllson,  24  Hun,  475. 

Auctioneers.  —  Re  Lord,  5  Law  Reporter,  258  ;  Jones  v.  Russell,  44  Ga.  460. 

Other  Agents  to  sell.  —  Treadwell  v.  Holloway,  46  Cal.  r)47. 

Agents  to  bui/.  — Re  Patterson,  2  Ben.  155  ;  Matteson  v.  Kellogg,  15  111.  547  ;  Her- 
man V.  Lynch,  26  Kas.  435  ;  Flagg  v.  Ely,  1  Edm.  206. 

Agents  to  collect.  — Fulton  v.  Hammond,  11  Fed.  Rep.  291  ;  Herrlich  v.  McDonald, 
80  Cal.  472  ;  Heffren  v.  Jayne,  39  Ind.  463  ;  White  v.  Piatt,  5  Den.  269. 

Agents  to  pai/  out.  —  Kingsland  t'.  Spalding,  3  Barb.  Ch.  341. 

Miscellaneous  Cases.  —  Donovan  v.  Haynie,  67  Ala.  51;  Crisfield  v.  State,  55  Md. 
192  ;  Halliburton  v.  Carter,  55  Mo.  435. 

But  it  must  be  admitted  that  in  many  cases  the  bankrupt  acts  have  received  a 
different  interpretation,  and  persons,  admitted  by  the  court  to  be  fiduciary  obligors, 
have  nevertheless  been  allowed  to  plead  their  discharge  as  a  bar. 

Factors.  —  Chapman  v.  Forsyth,  2  How.  202;  Grover  v.  Clinton,  8  N.  B.  R.  312; 
Owsley  V.  Cobin,  15  N.  B.  R.  489 ;  Re  Smith,  18  N.  B.  R.  24 ;  Keime  v.  Graf,  5  Re- 
porter, 489;  Zeperink  v.  Card,  11  Fed.  Rep.  295;  Austill  v.  Crawford,  7  Ala.  335; 
Chipiey  v.  Frierson,  18  Fla.  639  ;  Commercial  Bauk  v.  Buckner,  2  La.  An.  1023  ;  Hay- 
man  V.  Pond,  7  Met.  328.  In  Woolsey  v.  Cade,  54  Ala.  378,  Herrlich  v.  McDonald, 
80  Cal.  472,  480  (semble),  and  Vail  v.  Durant,  7  All.  408,  the  same  result  was  reached, 
but  on  the  ground  that  a  factor  has  the  right  to  mix  the  proceeds  of  sales  with  his 
own  money,  and  make  himself  a  debtor.  It  is  believed  that  the  court  in  the  leading 
case —  Chapman  v.  Forsyth,  supra  —  was  unconsciously  influenced  by  this  practice  of 
factors.  At  all  events,  the  attempted  distinction  between  fiduciary  obligation  within 
and  fiduciary  obligation  without  the  bankruptcy  statutes  is  vague  and  unsatisfactory. 

Auctioneers.  — Gibson  v.  Gorman,  44  N.  J.  325. 

Agents  to  collect. —  Noble  v.  Hammond,  129  U.  S.  65;  Wolcott  v.  Hodge,  15  Gray. 
547  ;  Cronan  v.  Cotting,  104  Mass.  245  ;  Woodward  v.  Towne,  127  Mass.  41  ;  Green 
V.  Chilton,  57  Miss.  598 ;  Palmer  r.  Hussey,  87  N.  Y.  303 ;  Lawrence  v.  Harrington, 
122  N.  Y.  408;  Williamson  v.  Dicken,  5  Ired.  259;  Pankey  v.  Nolan,  6  Humph.  154. 

Agenl^  to  pay  out.  —  Bissell  v.  Couchaiue,  15  Oh.  59. 

Partners.  —  Pierce  v.  Shippee,  90  111.  371 ;  Barber  v.  Sterling,  68  N.  Y.  267. 

Miscellaneous.  —  Phillips  v.  Russell,  42  Me.  360  (bailee  of  money  for  carriage); 
Fowles  V.  Treadwell,  24  Me.  377  (ijailee  for  custody) ;  Ilennequin  v.  Clews,  111  U.  S. 
676  (affirming  s.  c.  77  N.  Y.  427,  a  pledgee  wrongfully  transferring  the  pledge). 

The  doctrine  of  these  cases  was  recognized  also  in  Up.shur  v.  Briscoe,  138  U.  S.  365 
(aflBrming  8.  c.  37  La.  An.  138);  Hervey  v.  Devereux,  72  N.  Ca.  463;  Jockusch  v. 
Towsey,  51  Tex.  129,  where  the  defendants  were  true  debtors..  —Ed. 


SECT.  I.]  SHOEMAKER   V.    HINZE.  29 


SHOEMAKER  v.  HINZE. 
In  the  Supreme  Court,  "Wisconsin,  August  Term,  1881. 

[Reported  in  53  Wisconsin  Reports,  116.] 

Appeal  from  the  Circuit  Court  for  "Waukesha  County. 

The  action  is  to  recover  8^0,  whicli  the  complaint  alleges  "  the  de- 
fendant received  from  the  plaintiff,  as  his  agent,  ...  to  the  use  of 
the  plaintiff."  Demand  of  payment  thereof  before  action,  and  neglect 
of  the  defendant  to  pay  the  same,  are  also  alleged.  The  answer,  in 
addition  to  the  general  denial,  is  in  substance  that  the  money  was  re- 
ceived by  the  defendant  as  a  bailment,  without  compensation,  and  that 
it  was  stolen  from  him  without  his  fault  or  neglect.  The  case  is  further 
stated  in  the  opinion.  The  plaintiff  recovered,  and  the  defendant  ap- 
pealed from  the  judgment. 

J.  V.  V.  Platto,  for  the  appellant. 

D.  n.  Sumner,  for  the  respondent. 

Lyon,  J.  The  uncontradicted  evidence  is,  that  the  plaintiff,  when 
at  work  for  the  defendant,  requested  the  defendant  to  take  care  of  840 
in  money  for  him.  After  some  hesitation,  the  defendant  consented  to 
do  so,  and  received  the  money.  The  defendant  thereupon,  presumably 
in  the  presence  of  the  plaintiff,  placed  the  money,  with  other  money  of 
his  own,  in  his  wallet.  The  next  day  the  defendant  took  a  small  • 
amount  of  money  from  the  wallet  for  use,  and  in  the  evening  of  that  * 
day  added  §100  of  his  own  money  to  that  remaining  therein.  The  evi- 
dence tends  to  show  that  during  the  same  night  the  wallet  and  contents 
were  stolen  from  the  defendant's  vest  pocket,  in  which  he  had  placed 
the  same.  "We  think  the  evidence  shows  conclusively  that  the  parties 
did  not  contemplate  or  understand  that  the  same  identical  money  re- 
ceived by  the  defendant  was  to  be  kept  for  and  returned  to  the  plaintiff 
on  demand,  but  only  that  a  like  sum  of  money  should  be  repaid  by  the 
defendant.  The  transaction  is  not,  therefore,  a  bailment,  or  special 
deposit,  but  rather  what,  in  coniniercial  language,  is  termed  a  general 
deposit,  which  is  not  a  bailment,  but  is  in  the  nature  of  a  loan.  Story 
on  liailments,  §§41,  note  2,  88.  So  we  think  the  liability  of  the  de- 
fcudant  in  tliis  ease  is  i)recisely  tiie  same  as  the  liability  of  a  bank  for 
u  general  deposit  made  witli  it ;  '  that  is,  he  is  not  liable  in  tort  for  the 

'  Can-  V.  Carr,  1  Mfir.  541,  n. ;  Pott  v.  CIcrr,  16  M.  &  W.  321  ;  Foley  v.  Hill,  2  If. 
L.  C.  28;  Watts  v.  fhristie,  II  Hr^av.  540;  Re  A};ra  I?ank,  36  L.  .1.  Ch.  151  ;  Thninp- 
son  V.  HIkks,  5  Wall.  663;  Hank  of  Hfpul.lic  i'.  Millard,  10  Wall.  152,  155;  I'lielan  >: 
Iron  Hank,  4  Dill.  88;  Re  Mutual  Society,  15  N.  H.  K.  44;  Southern  Co.  v.  rJouston, 
27  Fed.  Rep.  344;  Moore/'.  Meyer,  57  Ala.  20,22;  Dawson  v.  Hunk,  5  Ark.  283; 
Brohm  v.  Adkintt,  77  111.  263;  (UIh  i-.  Gross,  96  III.  612;  McLain  v.  W.allace,  103  lufl. 
562;  Keene  v.  Collier,  1  Met.  Ky.  415  ;  Nat.  Bank  v.  Eliot  Bank,  20  Law  Ueporter, 
13S;  C.Trr  r.  Nat.  Bank,  107  MasH.  45,  48;  I'erley  v.  Muskegon  Co.,  32  Mich.   132; 


30      riTTSBUUGn  nat.  bank  of  commkpvCE  v.  Mcmurray.   [chap,  l 

money,  Init  is  liable  in  nastimpsi't  for  a  sum  eqnal  to  the  snm  deposited. 
His  liability  is  absolute,  and  it  is  immaterial  that  the  money  was  lost 
without  his  fault.  The  instructions  to  the  jury  related  solely  to  the 
law  of  bailment.  The  view  we  take  of  the  case  renders  it  unnecessary 
to  determine  whether  the  judge  gave  the  law  correctly  or  not ;  for  on 
the  undisputed  facts  the  plaintiff  was  entitled  to  recover,  and  the  de- 
fendant could  not  have  been  injured  by  any  error  in  the  charge.  Van 
Trott  i\  Weise  ;  *  Dufresne  v.  Weise."^ 

By  TiiE  Court.     The  judgment  of  the  Circuit  Court  is  affirmed.' 


PITTSBURGH  NATIONAL  BANK  OF  COMMERCE  v.  Mc- 

MURRAY. 

In  the  SuPREjrE  Court,  Pennsylvania,  October  13,  1881. 

[Reported  in  98  Pennsylvania  Reports,  538.] 

Before  Sharswood,  C.  J.,  Mercur,  Gordon,  Paxson,  Trunkey, 
and  Sterrett,  J  J.     Green,  J.,  absent. 

Error  to  the  Court  of  Common  Pleas  No.  1  of  Allegheny  County : 
of  October  and  November  Term,  1881,  No.  9. 

Assumpsit,  by  George  W.  and  William  McMurray  against  the  Pitts- 
burgh National  Bank  of  Commerce,  to  recover  the  sum  of  $1,300. 

On  the  trial,  before  Collier,  J.,  the  following  facts  appeared.  The 
plaintiffs,  who  lived  in  Noblestown,  had  been  in  the  habit  for  several 
years  of  sending  money  to  S.  B.  AV.  Gill,  an  attorney  at  law  in  Pitts- 
burgh, as  their  agent  and  attorney,  for  the  purpose  of  investment,  on 
the  understanding  that  Gill  was  to  pay  interest  on  the  money  from  the 
time  he  received  it  until  he  invested  it.  On  September  17,  1877, 
the  plaintiffs  sent  the  sum  of  $1,300  to  Gill's  office,  with  a  message 
that  it  was  for  investment.     Mr.  Gill  was  absent  from  the  city,  and 

Davie  v.  Smith,  29  Minn.  201  ;  Seward  Co.  v.  Cottle,  14  Neb.  144;  Re  Franklin  Bank, 
1  Paige,  249;  TEtna  Bank  v.  Fourth  Bank,  46  N.  Y.  82;  O'Connor  v.  M.  Rank,  124 
N.  Y.  324 ;  Ruffin  v.  Board,  69  N.  Ca.  498;  Bank  v.  Jones,  42  Pa.  536 ;  Duncan  v. 
Magette,  2.5  Tex.  245,  248. 

1  36  Wis.  439.  2  46  Wis.  290. 

8  Mulford  V  People  (111.  1891),  28  N.  E.  R.  1096  Accord. 

In  the  following  cases,  on  the  other  hand,  the  transaction  amounted  to  a  bailment  of 
the  money  for  safe  custody  or  carriage,  and  the  bailee,  being  free  from  fault,  was  not 
liable  for  the  loss  of  the  money.  Gililin  v.  McMullia,  L.  R.  2  P.  C.  317  ;  Johnson  v. 
Reynolds,  3  Kas.  257  ;  Foster  v.  Essex  Bank,  17  Mass.  479  ;  First  Bank  v.  Ocean  Bank, 
60  N.  Y.  278;  Tompkins  v.  Saltmar.sh,  14  S.  &  R.  275  ;  Lloyd  v.  West  Bank,  15  Pa. 
172;  Scott  V.  Nat.  Bank,  72  Pa.  471  ;  Duncap  v.  Magette,  25  Tex.  245  (semble). 

The  distinction  between  a  bailment  of  money  and  a  debt  is  illu.?trated  also  by  Coffin 
V.  Anderson,  4  Blackf.  395 ;  Mason  v.  Waite,  17  Mas.s.  500;  Ulmer  v.  Ulmer,  1  N.  & 
McC.  484;  Richey  v.  Hathaway  (Pa.  1892),  24  Atl.  R.  191.  — Ed. 


SECT.  I.]     riTTSBURGH   NAT.    BANK  OF   COMMERCE   V.    McMUREAY.         31 

the  money  was  left  Avith  his  son  and  business  assistant,  who  gave  the 
following  receipt  : 

"  Received,  Pittsburgh,  September  17,  1877,  of  George  "VV.  and  "W. 
IMcMurray,  the  sum  of  thirteen  hundred  dollars,  to  be  invested  by  me 
for  them.  ^  S.  B.  "W.  Gill, 

H.  B.  Gill." 

The  standing  arrangement  that  Gill  was  to  pay  interest  on  such 
funds  until  invested  was  not  countermanded  or  alluded  to.  H.  B. 
Gill,  on  the  same  day,  deposited  this  sum  in  the  defendant  bank,  to 
the  credit  of  his  father's  general  private  account.  Subsequently  he 
drew  from  the  bank,  on  blank  checks  left  with  him  and  signed  by  his 
father,  suras  exceeding  $1,300. 

Two  months  afterwards,  it  being  currentl}'  rumored  that  S.  B.  "W. 
Gill  was  a  defaulter  and  had  absconded,  the  plaintiffs  demanded  the 
sum  of  §1,300  from  the  bank,  on  the  ground  that  it  was  trust  money 
belonging  to  them.  At  this  time  the  balance  to  Gill's  credit  was 
81,954.  The  bank  refused  the  demand.  On  the  same  day,  a  writ  of 
sequestration,  issued  from  the  Orphans'  Court,  was  served  upon  the 
bank,  and  the  said  balance  standing  to  Gill's  credit  was  paid  to  the 
sheriff,  who  afterwards,  under  an  order  of  the  Orphans'  Court,  paid 
the  same  to  Gill's  assignee  in  bankruptcy.  The  plaintiffs  afterwards 
brought  this  suit. 

The  bank  alleged  that  they  had  an  agreement  with  Gill,  that  he  was 
to  keep  a  large  balance  on  deposit  to  secure  a  line  of  discounts  ;  that 
they  received  the  $1,300  as  Gill's  money,  without  notice  of  any  trust; 
and  that,  in  fact,  the  transaction  between  the  plaintiffs  and  Gill  was  a 
loan,  and  not  a  trust. 

The  defendant  presented,  inter  alia,  the  following  point :  (5)  "  If  the 
jury  finrl  that  the  money  in  question  was  sent  to  S.  B.  W.  Gill  for 
investment  under  the  same  arrangement  as  he  had  before  that  time 
received  other  moneys  from  plaintiffs  for  investment,  to  wit,  under 
an  arrangement  that  he  (Gill)  was  to  pay  interest  to  the  plaintiffs 
until  the  money  should  Ije  invested,  then  tlie  verdict  should  be  for  the 
defendant.  And  if  tiie  fact  was  as  stated  l)y  William  McMurray,  one 
of  the  plaintiffs,  that  such  arrangement  was  not  countermanded  when 
they  sent  the  money  claimed  in  this  case  to  Gill,  the  presumption 
would  be  that  the  same  arrangement  was  to  continue  in  respect  to 
said  money  as  had  been  agreed  ui)on  before  that  time  in  respect  to 
other  moneys  placed  by  plaintiffs  in  Gill's  hands  for  investment." 
Rpfnsed.     Kxception. 

Verdict  and  judgment  for  the  plaintiffs.  The  defendant  took  tiiia 
writ,  assigning  for  error,  iider  (ilia,  Uic  refusal  of  the  above  point. 

TlujinaH  C.  Lazear,  for  tiie  i)laintiffH  in  error.^ 

T.  Wdlff-r  Day,  for  t!ie  defendant  in  error. 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court,  October 
'i4th,  1881. 

'  Tho  argument8  of  counsel  are  omitted,  —  Ed. 


32  niATT   V.   TUTTLE.  [CHAP.  I. 

The  clofondant's  fifth  point  ought  to  have  been  afRrmed.  If, 
as  was  alleged,  the  money  was  placed  in  Gill's  hands  for  invest- 
ment, with  an  understanding  or  agreement  that  until  he  could  find 
a  satisfactory  mortgage  he  should  pay  interest  thereon,  the  plaintiffs 
below  cannot  hold  him  as  a  trustee,  nor  follow  his  deposit  in  the 
bank  as  trust  money.  As  the  court  below  negatived  the  point,  we 
must  assume  the  jury  would  have  found  the  facts  as  stated  therein. 
The  plaintiffs  cannot  treat  Gill  in  the  dual  character  of  trustee  and 
debtor.  Undoubtedly  the  receipt  by  him  of  the  money  for  invest- 
ment, without  more,  would  have  made  him  a  trustee.  The  money 
would  have  been  trust  money,  and,  if  misapplied,  could  have  been 
followed  until  it  reached  the  hands  of  an  innocent  holder  for  value. 
But  the  agreement  to  pay  interest  necessarily  implied  the  right  to  use 
the  money.  Interest  is  the  price  or  consideration  for  the  use  of 
money.  It  follows  that  Gill  became  the  mere  banker  or  debtor  of  the 
plaintiffs,  subject  to  the  duty  of  investing  the  money  in  a  mortgage 
when  a  suitable  opportunity  should  occur.  In  the  mean  time  he  had 
the  right  to  use  it  in  any  way  his  convenience  or  necessities  required. 
When  deposited  in  the  bank,  it  was  the  money  of  Gill,  not  of  the 
plaintiffs,  if  the  facts  be  as  stated  in  the  point. 

The  remaining  assignments  are  without  merit. 

Judgment  reversed,  and  a  venire  facias  de  novo  aioarded} 


DANIEL  R.   PRATT  and  Another  v.  BRONSON  B.   TUTTLE 

AND  Others. 

In  the  Supreme  Judicial  Court,  Massachusetts,  October  4,  1883  — 
January  29,  1884.     Field  &  W.  Allen,  JJ.,  absent. 

[Reported  in  136  Massachusetts  Reports,  233.] 

Holmes,  J.^  This  is  a  bill  in  equity  for  an  account  of  the  net 
profits  of  the  sale  of  certain  patented  wares,  which  were  made  and  sold 
under  patents  belonging  to,  or  controlled  by,  the  plaintiffs,  in  pur- 
suance of  agreements  between  the  plaintiffs  and  the  defendants  Tuttle 

1  If  the  duty  of  repaying  money  received  is  absolute,  there  is  a  debt,  although  the 
parties  may  have  described  the  transaction  as  a  trust.  Kershaw  v.  Snowden,  36  Oh. 
St.  181.  And  a  promise  of  the  recipient  to  pay  interest  is  almost  conclusive  evidence 
against  a  so  called  trust.  Upshur  v.  Briscoo,  1.38  U.  S.  3G5  (affirming  s.  c.  37  La.  An. 
138);  Kribs  v.  People,  82  111.425;  Re  Waldron,  28  Hun,  481.  (But  see,  as  to  the 
same  transaction,  Neilly  v.  Neilly,  23  Hun,  6.51,  Q.-)  N.  Y.  382.) 

In  Vincent  v.  Rogers,  30  Ala.  471,  Mory  v.  Michael,  18  Md.  227,  and  Gutch  v.  Fos- 
dick  (N.  J.  Eq.  1891),  22  Atl.  R.  .590,  the  courts  seem  to  have  fallen  into  the  same 
error  as  the  parties  in  treating  a  debt  as  a  trust.  The  decisions  were  right  in  all  the 
cases  except  the  last.  But  in  Gutch  v.  FiMk-k,  although  substantial  justice  was  done, 
the  bill  was  bad.     See  also  Comstock's  App.,  55  Conn.  214.  —  Ed. 

2  A  portion  of  the  opinion  is  omitted.  —  Ed. 


SECT.  I.]  HAMER   V.    SID  WAY.  3 


o 


and  Whittemore.  By  these  agreements,  Tuttle  and  Whittemore  were 
to  purchase  the  patents,  and,  to  that  end,  were  to  make  and  sell  the 
patented  articles,  and  pay  over  one  half  the  net  profits  to  the  plaintiffs, 
until  the  whole  agreed  price  was  paid,  whereupon  the  patents  were  to 
be  transferifed.  The  Tuttle  and  Whittemore  JIanuf acturing  Company, 
a  corporation  which  has  actually  done  the  work,  is  joined  as  a 
defendant.     :^11  the  defendants  demur. 

There  is  no  doubt  that  the  bill  can  be  maintained  against  Tattle  and 
Whittemore.  They  have  agreed  to  turn  over  net  profits  as  such. 
Their  obligation  is  not  a  simple  debt,  like  that  of  bankers ;  Foley  v. 
Hill,  2  H.  L.  Cas.  28 ;  nor  a  personal  obligation  to  pay  a  sum  of 
money  from  their  general  funds  by  way  of  royalty ;  but  they  have 
made  themselves  trustees,  or  quasi  trustees,  of  a  specific  identified 
fund,  which  it  is  alleged  that  they  have  received  and  not  paid  over. 
Such  a  fiduciary  relation  founds  the  equitable  jurisdiction  invoked,  as 
well  as  cross  demands  and  complexity  of  accounts.  Badger  v.  Mc- 
Namara,  12.3  Mass.  117,  119.  Mackenzie  v.  Johnston,  4  Madd.  373. 
Foley  V.  Hill,  2  H.  L.  Cas.  28,  35.  Padwick  v.  Stanley,  9  Hare,  627, 
628.  Hemings  v.  Pugh,  4  Giff.  456,  459.  Moxon  u.  Bright,  L.  R.  4 
Ch.  292,  295.     See  Barry  v.  Stevens,  31  Beav.  258. 

Ordered  accordingly.^ 

H.  L.  Parker,  for  the  defendants. 

*".  P.  Goidding,  for  the  plaintiffs. 


HAMER  V.  SID  WAY. 

In  the  Court  of  Appeals,  Second  Division,  New  York, 

April  14,  1891. 

[Reported  in  124  New  York  Reporter,  538.] 

Parker,  J.*  The  question  which  provoked  the  most  discussion  by 
counsel  on  his  appeal,  and  wiiich  lies  at  the  foundation  of  plaintiff's 
asserted  right  of  recovery,  is  whctiier  by  virtue  of  a  contract  defend- 
ant's testator,  William  E.  Story,  became  indebted  to  his  nephew,  William 

»  Scott  I'.  Snrman,  Willcs,  400,  404,  40.'>  (semble) ;  Salisbury  v.  Cecil,  1  Cox  Eq.  277 
(steward);  Mackenzie  i>.  Johnston.  4  Madd.  37.3  (agent  to  sell);  Hunter  v.  Belcher, 
1-2  W.  H.  121  (ai,'ciit  to  soil)  ;  Kniori  B:mk  v.  Gillfsjiio,  137  U.  S.  411  (agent  to  sell)  i 
Love  V.  Watkins,  40  Col.  .547,  .Ofi"  (scnhir)  ;  Dillon  v.  Connecticut  Co.,  44  Mil.  .'tMS 
(agent  to  collect) ;  Professor  Langdell's  Essay,  in  2  Iliirv.ini  Law  Kovicw,  2.'i;)-2Gl 
Arrnrd. 

King  >'.  Ro.4.Hett,  2  Y.  &  .1.  33  (agent  to  sell)  ;  Barry  v.  Stevens,  31  Beav.  2.'J8  (agent 
to  sell) ,  Taylor  v.  Turner,  87  111.  2'J6  (.agent  to  sell)  Contra. 

See  also  Varct  r.  N.  Y.  Co.,  7  I'aige,  500,  5G7-5C8  ;  I'cndergast  i;.  Greenfield,  127 
N.  Y.  23,  31.  — Ei>. 

'  Everything  is  omitted  except  that  part  of  the  opinion  relating  to  the  question  of 

trufit.  —  Ed. 

3  ' 


34  IIAMER    V.    SIDWAY.  [CIIAP.  I. 

E.  Story,  2d,  on  his  twenty-first  hirthday  in  the  sum  of  five  thousand 
dollars.  The  trial  court  found  as  a  fact  that  "on  the  20th  day  of 
March,  18G1),  .  .  .  AVilliani  E.  Story  agreed  to  and  with  William  E. 
Story,  2d,  that  if  he  would  refrain  from  drinking  liquor,  using  tobacco, 
swearing,  and  plaj'iug  cards  or  billiards  for  money  until  he  should  be- 
come 21  years  of  age,  then  he,  the  said  William  Yj.  Story,  would  at  that 
time  pay  him,  the  said  William  E.  Story,  2d,  the  sum  of  $5,00U  for 
such  refraining,  to  which  the  said  William  E.  Story,  2d,  agreed,"  and 
that  he  "  in  all  things  fully  performed  his  part  of  said  agreement." 

The  defendant  contends  that  ths  contract  was  without  consideration 
to  support  it,  and  therefore  invalid.^  .   .   . 

In  further  consideration  of  the  questions  presented,  then,  it  must  be 
deemed  established  for  the  purposes  of  this  appeal,  that  on. the  31st 
day  of  January,  1875,  defendant's  testator  was  indebted  to  William  E. 
Story,  2d,  in  the  sum  of  So, 000,  and  if  this  action  were  founded  on 
that  contract  it  would  be  barred  by  the  Statute  of  Limitations  which 
has  been  pleaded,  but  on  that  date  the  nephew  wrote  to  his  uncle  as 
follows : 

"  DEA.TI  Uncle,  —  I  am  now  21  years  old  to-day,  and  I  am  now  my 
own  boss,  and  I  believe,  according  to  agreement,  that  there  is  due  me 
So, 000.  I  have  lived  up  to  the  contract  to  the  letter  ia  every  sense  of 
the  word." 

• 

A  few  days  later,  and  on  February  6th,  the  uncle  replied,  and,  so 
far  as  it  is  material  to  this  controversy,  the  reply  is  as  follows  : 

"Dear  Nephew,  —  Your  letter  of  the  31st  ult.  came  to  hand  all 
right,  saying  that  you  had  lived  up  to  the  promise  made  to  me  several 
years  ago.  1  have  no  doubt  but  you  have,  for  which  you  shall  have 
So, 000  as  I  promised  you.  I  had  the  money  in  the  bank  the  day  you 
was  21  years  old  that  I  intended  for  you,  and  you  shall  have  the  money 
certain.  Now,  Willie,  I  don't  intend  to  interfere  with  this  money  in 
any  way  until  I  think  you  are  capable  of  taking  care  of  it,  and  the 
sooner  that  time  comes  the  better  it  will  please  me.  I  would  hate  very 
much  to  have  you  start  out  in  some  adventure  that  you  thought  all 
right  and  lose  this  money  in  one  year.  .  .  .  This  money  you  have 
earned  much  easier  than  I  did,  besides  acquiring  good  habits  at  the 
same  time,  and  you  are  quite  welcome  to  the  money.  Hope  you  will 
make  good  use  of  it.   .  .  .  W.  E.  Story. 

"  P.  S.  —  You  can  consider  this  money  on  interest." 

The  trial  court  found  as  a  fact  that  "  said  letter  was  received  by  said 
William  E.  Story,  2d,  who  thereafter  consented  that  said  money  should 
remain  with  the  said  William  Yj.  Story  in  accordance  with  the  terms 
and  conditions  of  said  letter."  And  further,  "That  afterwards,  on 
the  first  day  of  March,  1877,  with  the  knowledge  and  consent  of  his 
Baid  uncle,  he  duly  sold,  transferred,  and  assigned  all  his  right,  title, 

^  The  Court  held  the  contract  valid.  —  Ed. 


SECT.  I.]  HAMER  V.    SmWAY.  35 

and  interest  in  and  to  said  sum  of  So, 000  to  his  wife,  Libbie  H.  Story, 
who  thereafter  duly  sold,  transferred,  and  assigned  the  same  to  the 
plaintiff  in  this  actipn." 

We  must  now  consider  the  effect  of  the  letter,  and  the  nephew's 
assent  thereto.  Were  the  relations  of  the  parties  thereafter  that  of 
debtor  and  creditcw  simply,  or  that  of  trustee  and  cestui  que  trust?  W- 
the  former,  then  this  action  is  not  maintainable,  because  barred  by 
lapse  of  time.  If  the  latter,  the  result  must  be  otherwise.  No  par- 
ticular expressions  are  necessary  to  create  a  trust.  Any  language 
clearly  showing  the  settler's  intention  is  sufllcient,  if  the  property  and 
disposition  of  it  are  definitely  stated.     (Lewin  on  Trusts,  55.) 

A  person  in  the  legal  possession  of  money  or  property  acknowledg- 
ing a  trust  with  the  assent  of  the  cestui  que  trust,  becomes  from  that 
time  a  trustee  if  the  acknowledgment  be  founded  on  a  valuable  con- 
sideration. His  antecedent  relation  to  the  subject,  whatever  it  may 
have  been,  no  longer  controls.  (2  Story's  Eq.  §  972.)  If  before  a 
declaration  of  trust  a  party  be  a  mere  debtor,  a  subsequent  agreement 
recognizing  the  fund  as  already  in  his  hands,  and  stipulating  for  its 
investment  on  the  creditor's  acfcouut,  will  have  the  effect  to  create  a 
trust.     (Day  v.  Roth,  18  N.  Y.  448.) 

It  is  essential  that  the  letter  interpreted  in  the  light  of  surrounding 
circumstances  must  show  an  intention  on  the  part  of  the  uncle  to  be- 
come a  trustee  before  he  will  be  held  to  have  become  such  ;  but  in  an 
effort  to  ascertain  the  construction  which  should  be  given  to  it,  we  are 
also  to  observe  the  rule  that  the  language  of  the  promisor  is  to  be  in- 
terpreted in  the  sense  in  which  he  had  reason  to  suppose  it  was  under- 
stood by  the  promisee.  (White  v.  Iloyt,  73  N.Y.  505,  511.)  At  the 
time  the  uncle  wrote  the  letter  he  was  indebted  to  his  nephew  in  the 
sum  of  85,000,  and  payment  had  been  requested.  The  uncle,  recogniz- 
ing the  indebtedness,  wrote  the  nephew  that  he  would  keep  the  money 
until  he  deemed  him  capable  of  taking  care  of  it.  He  did  not  say,  "  I 
will  pay  you  at  some  other  time,"  or  use  language  that  would  indicate 
that  the  relation  of  deljlor  and  creditor  would  continue.  On  the  con- 
trary, his  language  indicated  that  he  had  set  apart  the  money  the 
nephew  had  "  earned"  for  him,  so  that  when  he  should  be  capalde  of 
taking  care  of  it  he  should  receive  it  with  interest.  He  said,  "  I  had 
the  money  in  the  bank  the  day  you  were  21  years  old  that  I  intended 
for  you  and  you  shall  have  tlie  money  certain."  'i'hat  he  had  set  apart 
the  money  is  further  evidenced  by  the  next  sentence:  "  Now,  Willie, 
I  don't  intend  to  interfere  with  this  money  in  any  way  until  I  think 
you  are  capable  of  taking  care  of  it."  Certainly,  the  uncle  must  have 
intended  that  his  nephew  should  understand  that  the  promise  not  "  to 
interfere  with  tiiis  money"  referred  to  the  money  in  the  bank,  which  he 
declared  was  not  only  there  when  the  Jiephew  became  21  years  old,  but 
was  intended  for  iiim.  True,  he  did  not  use  the  word  "  trust,"  or  state 
that  the  money  was  deposited  in  the  name  of  William  E.  Story,  2d,  or 
in  his  own  name  in  trust  for  him,  but  the  language  used  must  have 


36  ALLEN   V.   IMPETT.  [CHAP.  1 

been  intended  to  assure  the  nephew  that  his  money  had  been  set  apart 
for  him,  to  bo  kept  without  interference  until  lie  should  be  capable  of 
taking  care  of  it,  for  the  uncle  said  in  substance  and  in  effect;  "  This 
money  you  have  earned  much  easier  than  1  did  .  .  .  you  are  quite 
welcome  to.  I  had  it  in  the  bank  the  day  you  were  21  years  old  and 
don't  intend  to  interfere  with  it  in  any  way  until  I  think  you  are  capa- 
ble of  taking  care  of  it,  and  the  sooner  that  time  comes  the  better  it 
will  please  me."  In  this  declaration  there  is  not  lacking  a  single  ele- 
ment necessary  for  the  creation  of  a  valid  trust,  and  to  that  declaration 
the  nephew  assented. 

The  learned  judge  who  wrote  the  opinion  of  the  General  Term  seems 
to  have  taken  the  view  that  the  trust  was  executed  during  the  lifetime 
of  defendant's  testator  by  payment  to  the  nephew  ;  but  as  it  does  not 
appear  from  the  order  that  the  judgment  was  reversed  on  the  facts,  we 
must  assume  the  facts  to  be  as  found  by  the  trial  court,  and  those  facts 
support  its  judgment. 

The  order  appealed  from  should  be  reversed,  and  the  judgment  of 
the  Special  Term  affirmed,  with  costs  payable  out  of  the  estate. 

All  concur. 

Order  reversed  and  judgment  of  Special  Term  affirmed. 


ALLEN,  Assignee  of  PRIOR,  a  Bankuu.pt,   v.  IMPETT  and 

Another. 

In  the  Common  Pleas,  Aprii.  29,  1818. 

[Reported  in  8  Taunton,  263.] 

Assumpsit  for  money  had  and  received.  At  the  trial,  before  Dallas, 
J.,  at  the  London  sittings  after  the  last  term,  it  appeared  that  the 
defendants  were  trustees  of  the  marriage  settlement  of  the  bankrupt, 
and  that  certain  stock  thereby  settled  was  held  by  them,  upon  trust,  to 
pay  the  dividends  to  the  bankrupt  during  his  life ;  that  he  had  been 
permitted  by  the  defendants  to  receive  these  dividends  until  the  issuing 
of  the  commission  against  him,  whicii  happened  in  December,  1815  ; 
that  in  August,  1816,  the  defendants  executed  a  power  of  attorney  to  a 
third  party  to  receive  the  dividends,  who  accordingly  received  two 
half-years'  dividends,  due  in  April  and  October,  1810,  and  paid  them 
over  to  the  wife  of  the  bankrupt,  and  also  received  another  half-year's 
dividend,  due  in  April,  1817,  which  he  paid  over  to  one  of  the  defend- 
ants. The  present  action  was  brought  to  recover  the  total  amount  of 
these  dividends  Dallas,  J.,  being  of  opinion  that  the  defendants  were 
lialjle  in  equity  only,  and  that  the  action  was  not  maintainable,  directed 
a  nonsuit.^ 

1  See  Holt,  N.  P.  C41.  — Eu. 


SECT.  I.]  *  BARTLETT    V.    DIMOND,  37 

Per  Cttriam.^  This  action  is  brought  to  recover  the  amount  of 
(lividentls  of  stock  to  which  the  bankrupt  was  entitled,  and  which  his 
trustees  have  received  since  the  baijkruptey,  and  a^jplied  to  vfirious 
purposes.  With  full  notice  of  the  bankruptcy,  they  refuse  to  p%}'  the 
money  over  to  the  assignees.  There  cannot,  be -any  difficulty  in  sus- 
taining this  action,  the  whole  of  the  money  having  been  virtually 
received  by  the  trustees.  Mule  absolute.'^ 


BARTLETT  v.  MARY  DIMOND,  Executrix  of  CHARLES 
PALMER   DIMOND,  Deceased. 

In  the  Exchequer,  April  17,  1845. 
[Reported  in  14  Meeson  ^  Wehby,  49.] 

The  judgment  ^  of  the  court  was  now  delivered  by 

PfjLLOCK,  C.  B.  This  case  was  argued  last  term,  and  time  taken  for 
consideration.  The  question  is,  whether  an  action  will  lie  against  the 
defendant  as  executor,  for  money  had  and  received  by  his  testator. 
The  testator  was  appointed  by  deed  by  the  plaintiff,  a  mortgagor,  and 
Palmer,  the  mortgagee,  to  receive  the  rents  of  the  mortgaged  estate, 
and  by  the  terms  of  the  deed  the  testator  was,  after  allowing  for  the 
taxes  and  repairs  to  the  tenants,  to  hold  all  the  remaining  rents  in 
trust  for  the  purposes  in  the  deed  specified.  The  purposes  are,  first, 
to  pay  taxes  ;  secondly,  the  costs  of  collection  ;  thirdly,  a  commission  ; 
fourthly,  premiums  on  a  policy  of  assurance  ;  and,  lasth',  to  apply  the 
Burplus  in  or  Upwards  satisfaction,  on  the  6th  January  and  Gth  July,  of 
the  accruing  interest  on  the  principal  money  secured,  and  to  pay  the 
ulthnate  surplus,  if  any,  to  the  plaintiff,  with  a  proviso,  that  if  on  those 
days,  the  fith  .January  and  Gth  July,  the  testator  should  have  rents  and 
profits  in  hand,  it  sliould  be  lawful  for  him  to  retain  the  whole  or  part, 

'  Gibbs,  C.  .J.,  was  absent. 

*  III  Ca-sf.  »•.  Hobcrts,  Holt,  N.  P.  ."JOO  {sniihlc) ;  Hart  r.  Jliiior,  2  Cr.  &  ISI.  700; 
Ropor  r.  Ilullaiifl, ."}  A.  &  K.  99;  Topliaiu  r.  Morccraft,  8  E.  il^  IJ.  972;  Howard  v. 
Browiihill,  21  L.  J.  q.  B.  23;  Nel.son  »•.  Ilowanl,  r,  Mil.  327;  Bougliton  v.  Flitit,  74  N. 
Y.  476;  anil  Turner  »•  McManua,  22  New  Mr.  391,  398,  it  was  held  that  the  relation  of 
tru.Htee  and  rcsini  (/tn-  trust  between  tlic  defemlaiit  and  plaiirtiff  had  liteii  dclennined 
as  to  the  Hiibject  matter  of  the  aetion.  'I'lie  principle  Ujion  wliieli  the  action  at  law 
was  niaintainable  in  the  c"t>»e9  above  cited  was  well  exjiressed  by  Winhtnian,  .).,  in 
To|ilriTii  •.  MoreiTaft,  supra :  "  It  seems  to  me  impossilile  to  maintain  that  if  a  trustee, 
ill)"  of  trnst  money,  enter  into  an  account  with  \ii>i  ri'stui  i/w  trust,  siud  tiicre- 

upoii  ,  ly  state  an  acconnt,  ami  acknowledf^c  that  he  has  a  fund  in  hand  appli- 
cable to  the  claim  ma<le  on  him,  he  does  not  thereupon  put  an  end  to  his  character 
of  beitif;  a  tnisfec  merily,  and  become  liatde  as  a  debtor  to  an  action  at  law  liroiiphc 
nRainst  him  in  his  personal  capacity."  Sec  also  Professor  Langdell's  paptr  on  "  Btlla 
for  an  Account,"  2  Ilarv.  I-aw  Hev.  242.  2.'>4. —  Ei». 

"  ( >iily  the  opinion  of  the  Court  is  here  Riven.  —  !•;». 


38  BARTLETT   V.   DIMOND.  *  [CITAP.  I. 

for  the  purpose  of  paying  tlie  prcniimns  in  that  year  on  the  policy  ;  with 
other  provisos.  The  deed  contained  a  covenant  by  the  testator  with 
Puhner  and  with  the  pUiiutitT,  that  the  testator,  as  long  as  he  should  be 
receiver,  would  use  his  endeavors  to  collect  and  receive,  and  would 
pay  and  cause  to  be  paid,  in  manner  and  for  the  ends,  intents,  and  pur- 
poses aforesaid,  all  the  rents  received  by  him.  The  testator  did  not 
execute  the  deed.  According  to  the  terms  of  this  indenture,  the  de- 
fendant M'as  bound,  as  Mr.  Martin  argued,  to  pay  whatever  was  the 
balance  on  each  6th  January  and  6th  July,  iirst,  in  satisfying  the  inter- 
est, and,  secondly,  to  pay  over  the  then  surplus  to  the  plaintiff ;  and  as 
the  account  stated  by  the  executor  showed  a  balance  on  some  of  those 
days,  an  action  would  have  lain,  not  of  covenant,  because  the  defendant 
did  not  execute  the  deed,  but  of  special  assumpsit  (because  he  agreed 
to  the  instrument),  on  the  special  contract  to  make  the  payments; 
and,  as  nothing  more  was  to  be  done  but  to  pay  money,  an  action  for 
money  had  and  received  could  be  maintained. 

AVhether,  if  this  had  been  the  true  construction  of  the  deed,  such  an 
action  would  have  been  supported,  is  not  now  the  question,  because  we 
are  all  clearly  of  opinion  that  the  testator  was  not  bound,  by  the  terms 
of  the  deed,  to  pay  the  -Surplus  existing  on  each  6th  January  and  6th 
July  to  the  plaintiff.  Although  there  is  a  contract  by  the  testator  to  re- 
ceive and  pay  the  moneys  according  to  the  deed,  yet  it  is  nothing  more 
in  effect  than  a  contract  to  perform  the  trusts  specified  by  the  inden- 
ture, and  all  the  moneys  received  by  him  under  the  indenture  were  held 
in  trust.  The  testator  was  not  a  mere  receiver,  but  a  trustee,  and  the 
primary  important  object  of  his  trust  was  to  keep  down  the  mortgage 
interest ;  and  for  that  purpose  he  had  a  discretion^  under  the  control  of 
a  court  of  equity,  to  keep  the  funds  in  his  hands,  if  reasonably  neces- 
sary, and  was  not  bound,  on  each  6th  January  and  6th  July,  to  balance 
his  accounts,  and  pay  over  on  those  days  the  then  siu-plus.  For  instance, 
it  miglit  happen  that,  on  the  6th  July,  the  trustee  might  know  that  no 
rents  would  be  forthcoming  in  time  to  pay  the  half-year's  interest  due 
in  January  ;  and,  if  so,  he  might,  without  contravening  the  deed,  keep 
the  then  surplus  towards  the  subsequent  interest.  Whether  he  did  so 
properly  or  not  could  not  be  tried  by  a  court  of  law :  the  only  remedy 
would  be  in  a  court  of  equity,  which  could  make  proper  inquiries  and 
give  proper  directions.  So  long  as  a  trust  continues,  a  bill  in  equity  is 
the  only  remedy.  We  think  that  the  moneys  received  were  originally 
received  in  trust,  and  that  the  trust  had  not  determined  at  the  testator's 
death.  If  that  trust  was  ended,  and  the  testator  had  stated  an  account, 
or,  in  otlier  words,  had  admitted  himself  to  tlie  plaintiff  that  he  held 
any  sum  of  money  in  his  hands  payable  to  him  absolutely,  he  would, 
with  respect  to  that  sum,  be  a  debtor,  not  properly  a  trustee,  and  then 
an  action  would  have  been  maintainable  against  him.  This  is  the  prin- 
ciple upon  which  Roper  v.  Holland,^  and  other  cases  '^  referred  to  in  the 

»  3  Ad  &  Ell.  99 ;  4  Nev.  &  M.  Cf.8. 

2  See  Reraou  v.  Ilayward,  2  Ad.  &  Ell.  666. 


SECT.  I.]  MOOKE   V.   DARTOX.  39 

judgment  of  this  court  in  the  case  of  Pardoe  v.  Price, ^  was  decided. 
The  case  of  Alien  v.  Impett  seems  at  least  questionable. 

There  is  no  evidence,  however,  of  any  such  statement  of  account. 
If  the  account  rendered  by  the  executor  had  been  rendered  by  the  tes- 
tator, it  would  have  been  a  question  for  the  jury  whether  it  was  such  a 
statement  as  to  constitute  the  testator  a  debtor ;  but  being  stated  by 
the  executor  as  the  account  of  the  testator,  it  is  only  equivalent  to 
evidence  that  such  payments  as  therein  mentioned  were  made  by  and 
to  the  testator.     AVe  therefore  think  the  rule  must  be  discharged. 

Rule  discharged.'^ 


MOORE  V.  DARTON. 
In  Chancery,  before  Sir  J.  L.  Knight  Bruce,  V.  C,  June  13,  1851. 

[Reported  in  4  De  Gex  Sf  Smale,  517.] 

This  was  an  administration  suit,  which  now  came  on  to  be  heard 
upon  exceptions  to  the  report  of  the  master ;  and  the  question  was 
whether  the  delivery  of  two  documents  constituted  a  donatio  mortis 
causa.  The  testatrix  had  advanced  to  William  Moore,  one  of  the 
plaintiffs,  ,£600,  and  had  taken  from  him  upon  that  occasion  the  two 
documents  in  question  signed  by  him,  and  which  were  as  follows : 

"  Received  the  22d  of  October,  1843,  of  Miss  Darton,  Five  Hun- 
dred Pounds,  to  bear  interest  at  4  per  cent  per  annum,  but  not  to  be 
withdrawn  at  less  than  six  months'  notice. 

"  .£500.  William  Moore." 

J  13  M.  &  W  282. 

2  DeeVs  V.  Strutt,  5  T.  R.  690  (legatee) ;  Jones  v.  Tanner,  7  B.  &  C.  542  (legptee) ; 
Edwards  v.  Bates,  7  M.  &  G.  590;  Pardoe  v.  Price,  16  M.  &  W.  451 ;  Edwards  v. 
Lowndes,  I  E.  &  B.  81  ;  Curtis  v.  Smith,  6  Blatch.  537,  544;  White  v.  Sheldon,  4 
Nev.  280,  294;  Bishop  v.  Houghton,  1  E.  1).  Sin.  56G,  571 ;  Dias  v.  Brunell,  24  Wend. 
9,  12  Accord. 

Ar  In  PMwards  v.  Lowndes,  mpra.  Lord  Camphcll  said,  p.  89:  "It  maybe  taken  as 
'^•ettled  that  wliorc  the  parties  stand  to  each  other  in  tlio  relation  of  trustee  an<l  c.esud 
lite,  trust,  and  the  trustee  Is  under  no  other  legal  liability  than  that  whirii  arises  from 
that  relation,  no  action  at  law  for  money  had  and  received  can  he  maintained  against 
bim,  though  ho  has  money  in  his  hands  which  under  the  terms  of  the  trust  he  ought 
to  pay  over  to  the  rrstui  f/uc  trust,  hut  wliicli  ho  still  liolds  in  the  character  of  trustee 
only.  It  is  unnecessary  to  refer  upon  this  proposition  to  other  authorities  than  that 
of  the  well  considered  judgm((nt  delivered  hy  Baron  Holfo  in  Pardon  >\  Price,  Ifi  M.  &  \V- 
4.'»1.  Ijj  indeed,  the  trustee,  hy  ai)])ropriating  a  sum  as  payal)lc  to  tlioccs/iu  i/iu-  trust, 
or  otherwise,  admits  that  ho  holds  It  to  he  paid  to  the  restm  r/iic  trust,  and  for  his  use, 
the  character  f>f  the  relation  hetwccn  the  parties  is  ctianged  ;  and  th(>  trustee  does  not 
hold  it  as  a  trustee  properly  so  called,  but  as  a  receiver  for  the  pliiiiitiffH  use,  who  may 
maintain  an  action  at  law  for  money  had  and  received,  founded  upon  thea|)proprialiou 
to  his  use  and  the  liability  thence  arising.  Tliere  are  many  cases  that  are  fouii(b'd  upon 
this  princijde,  from  y\llen  v.  Impett  to  lioper  v.  Holland,  3  A.  &  E.  99;  and  these  havo 
reference  to  earlier  dcciaions."  —  Eo. 


40  FARLEY  V.   TUKNER.  [CIIAP.  I. 

"Received  the  22(1  of  October,  1843,  of  Miss  Diirton,  for  the  use 
of  Auu  Dye,  One  Iluudred  Pounds,  to  be  paid  to  her  at  Miss  Bar- 
ton's decease,  but  the  interest  at  4  per  cent  to  be  paid  to  Miss 
Darton. 

"^'100.  William  Moore." 

"  (I  approve  of  the  above)     Betty  Dahton." 

The  transactions  relied  upon  as  constituting  the  donatio  mortis 
causa  took  place  on  June  the  28th,  1845,  between  Miss  Darton  and 
Ann  Dye,  who  was  mentioned  in  the  second  memorandum,  and  who 
was  Miss  Darton's  lady's  maid.^ 

Miss  Darton  died  ten  days  afterwards. 

The  Master  found  that  the  ^600  was  an  outstanding  debt  from  the 
plaintiff,  William  Moore,  who  now  excepted  to  that  tinding. 

Mr.  Sicanston  and  Mr.  Moxon  supported  the  exceptions. 

3fr.  Walker  and  Mr.  Pryor  contra. 

Mr.  Marshall,  for  other  parties. 

The  Vice  Chancellor.  The  case  as  to  the  ^100  is,  I  think, 
beyond  the  influence  of  the  question  whether  there  was  a  donalio 
mortis  causa/  for,  in  my  opinion,  an  effectual  trust  w^as  declared 
inter  vivos  in  favor  of  the  servant  maid.  The  document  relating  to 
this  sum  appears  to  have  been  written  contemporaneouslj'  with  the 
creation  of  the  debt.  It  is  thus :  [His  Honor  read  it.]  Now, 
although  this  was  not  then  signed  by  Miss  Darton,  yet  it  is  probable 
that,  as  she  so  intended  the  transaction,  and  as  she  received  the  doc- 
ument, she  would  be  deemed  to  have  assented  to  it,  even  without 
signing  it.  But  in  fact  she  afterwards  signed  it.  Mr.  Moore  there- 
fore became  a  trustee  of  the  amount  for  Miss  Darton  during  her  life, 
and  for  Ann  Dye  after  Miss  Darton's  death. 


FARLEY  V.   TURNER. 
In  Chancery,  before  Sir  R.  T.  Kindersley,  V.  C,  June  7,  1857. 

[Reported  in  26  Law  Journal,  Chancer i/,  710  ] 

In  December,  1856,  Messrs.  Farley,  Turner,  and  Jones  carried  on  the 
business  of  bankers  at  Kidderminster,  and  on  the  0th  of  that  month 
Mr.  Goodwin,  a  customer  of  the  bank,  who  had  then  a  balance  of 
£942  in  the  bank,  paid  in  a  further  sum  of  £707.  At  the  same  time 
he  gave  specific  directions  to  the  clerk  that  £500  of  this  money  was 

'  So  much  of  the  case  as  relates  to  the  donatio  mortis  causa  is  omitted.  Both  docu- 
ments were  given  by  Miss  Darton,  when  on  her  death-isud,  to  Ann  Dye,  to  be  deliv- 
ered at  her  death  to  William  Moore  in  forgiveness  of  the  debt.  The  gift  was  held 
effective  as  to  the  document  for  £500.  —  Ed. 


SECT.  I.]  FAELEY  V.   TUKNER.  41 

lodged  for  the  purpose  of  paying  a  bill  which  would  become  due  at 
Messrs.  Kobarts  &  Co.'s  on  the  14th  of  December.  He  also  wrote  out 
the  following  notice,  which  he  left  with  the  bank  clerk  : 

"  Messrs,  Farley,  Turner,  and  Jones, 

Advise  Messrs.  Robarts,  Curtis,  &  Co.  to  pay,  as  under,  my  ac- 
ceptance, dated  October  the  11th,  at  two  months,  due  December  the 
14th,  to  J.  &  C.  Sturge. 

£500.  D.  AV.  GooDwix." 

In  pursuance  of  these  instructions,  advice  was  immediately  for- 
warded by  the  Kidderminster  Bank  to  Messrs.  Overend  and  Guruey  to 
pay  £500,  part  of  the  produce  of  various  bills  sent  to  them  to  dis- 
count, to  Messrs.  Robarts  &  Co.  to  meet  Mr.  Goodwin's  acceptance. 
This  was  done  on  the  11th  of  December,  and  on  the  morning  of  the 
12th  Messrs.  Robarts  &  Co.  received  information  of  the  death  of  Mr. 
Turner,  one  of  the  firm  of  Farley,  Turner,  and  Jones,  which  took  place 
on  the  evening  of  the  11th  after  the  bank  was  closed;  and  the  firm 
having  ceased  to  carry  on  business,  the  £500  was  not  applied  in  pa}'- 
ment  of  the  acceptance  of  Mr.  Goodwin,  but  was  subsequently  paid 
over  to  the  representatives  of  the  estate. 

It  further  appeared  that  the  £707  lodged  at  the  Kidderminster  Bank 
by  Mr.  Goodwin  was  carried  to  his  general  banking  account. 

A  suit  was  instituted  for  the  administration  of  the  estate  of  Mr. 
Turner,  and  a  question  was  now  raised  upon  an  adjourned  summons 
from  chambers,  whether  the  £500  so  paid  to  Messrs.  Kobarts  &  Co. 
belonged  to  Mr.  Goodwin  "or  to  the  general  creditors  of  the  bank. 

Mr.  liaily  and  Mr.  ElderLon  appeared  for  Mr.  Goodwin. 

Mr.  Glasse  and  Mr.  Eddis  for  the  creditors  of  the  bank.i 

KiNDERSLEY,  V.  C.  I  think  that  the  claima.nt  is  entitled  to  the  £500 
flpecifically.  I  am  fearful  lest  I  should  be  influenced  in  my  decision 
by  this  being  a  hard  case,  since  hard  cases  often  make  bad  law,  but 
still  I  feel  a  strong  conviction  that  it  will  be  in  accordance  witii  tiie 
law  to  allow  the  claim.  Tiie  matter  stands  in  this  way.  Goodwin 
having  to  pay  a  Itill  which  he  had  accepted,  payable  at  Robarts  &  Co., 
thought  fit  to  pay  into  the  hands  of  his  l)ankers,  INIessrs.  Farley,  Tur- 
ner, and  .Tones,  a  sum  of  £707  in  adilition  to  the  balance  then  standing 
to  his  credit.  According  to  the  statouient  in  tiic  case,  it  apjjcars  tluit 
at  the  time  of  paying  in  tiie  £707  Goodwin  told  the  ch-rk  that  £500  of 
this  money  was  to  be  applied  for  the  specific  purpose  of  meeting  an 
acceptance,  payable  at  Robarts  &  Co.'s,  to  become  due  on  the  14tli. 
Goodwin  at  the  same  time  signed  the  notice  before  stated.  Now, 
what  was  tlie  effect  of  tins  dirciction  to  the  bankers?  Goodwin  in 
effect  said,  "  Tliere  is  a  bill  wliich  I  want  paid  at  Kobarts  «&  Co., 
therefore  send  them  £500  of  this  money  and  advise  them  to  apply  it 
in  payment  of  this  bi'l."     The  direction  is  accepted  by  the  Ijankers,  or 

'  The  arguments  of  connHcl  .are  omittecl. —  Kd. 


42  IN  RE  barned's  banking  00.  [chap.  I. 

by  their  clerk,  which  amounts  to  the  same  thin*,  and  the  clerk  did 
what  appears  to  be  usual.  There  was  no  negligence  on  his  part ;  at 
the  same  time  he  placed  the  whole  amount  of  £707  to  Mr.  Goodwin's 
general  banking  account.  He  might  certainly  have  sent  up  a  check 
for  £.300  to  Messrs.  Kobarts  &  Co.,  and  placed  the  remaining  sum  to 
Mr.  Goodwin's  account ;  but  he  took  the  ordinary  course  and  sent  up 
the  £500,  debiting  IMr.  Goodwin's  banking  account  with  that  sum, 
and  they  informed  Robarts  &  Co.  that  such  a  bill  would  be  presented. 
Now,  it  so  happened  that  the  Kidderminster  Bank  hail  other  bills, 
more  or  less  under  similar  circumstances,  which  they  wanted  paid  at 
Robarts's  bank,  and  they  sent  up  a  batch  of  bills  to  Messrs.  Overend 
and  Gurney  for  them  to  discount,  and  directed  them  to  pay  the  amount 
into  Robarts  &  Co.'s  bank  for  the  purpose  of  meeting  other  bills,  as 
well  as  that  for  £500.  It  appears  to  me  that  the  course  pursued  was 
the  same  as  if,  having  no  occasion  to  pay  more  than  the  £500  bill, 
they  had  simply  sent  up  the  specific  amount  with  a  direction  to  pay 
that  particular  bill.  It  is  true  that  the  money  was  not  ear-marked  as  if 
it  had  been  locked  up  in  a  box,  but  it  is  a  portion  of  the  £707  which 
had  been  paid  in  expressly  for  the  purpose  of  meeting  the  bill  for  £500. 
The  facts  of  this  case  differ,  I  think,  from  the  cases  cited.  I  admit 
that  the  money  is  not  a  particular  deposit  with  the  bankers,  but  it  is 
money  placed  in  their  hands  to  be  applied  in  a  particular  way.  What 
I  now  decide  will  not  trench  upon  the  authorities  which  decide  that 
money  paid  into  a  banker's  is  not  a  deposit  which  you  may  receive 
back  in  the  identical  notes  and  sovereigns,  but  that  it  is  a  debt.  That 
is  quite  a  different  case.  Under  the  circurnstances,  I  am  of  opinion 
that  the  £500  belongs  specifically  to  Goodwin,  and  not  to  the  general 
creditors  of  Mr.  Turner.^  The  costs  will  come  out  of  the  general 
estate. 


In  re  BARNED'S  BANKING  COMPANY  (Limited). 
MASSEY'S   CASE. 

In  Chancery,  before  Lord  Romillt,  M.  R.,  May  G,  1870. 

[Reported  in  39  Law  Journal,  Chanceri/,  635.] 

A  BILL  of  exchange  for  ,£185  drawn  by  Massey  on  a  Mr.  Fox  was 
by  the  latter  accepted,  payable  at  the  office  of  Messrs.  Prescott  &  Co., 
the  correspondents  in  London  of  Barned's  Banking  Company. 

In  pursuance  of  an  arrangement  with  Fox,  Massey,  on  the  17th  of 
April,  18G5,  (being  the  day  before  the  bill  became  due,)  paid  into  the 
office  of  Barned's  Banking  Company  at  Liverpool  (with  which  neither 
Massey  nor  Fox  kept  any  account)  the  proper  amount  to  be  remitted 

1  Fisher  v.  Miller,  7  Moore,  527  ;  St.  Louis  i'.  Johnson,  5  Dill.  241 ;  Drovers'  Bank 
V.  O'Hare,  119  111.  646;  Union  Bank  v.  Dumond,  33  111.  Ap.  102;  Cutler  v.  American 
Bank,  113  N.  Y.  593  Accord.  —  Ed. 


SECT.  I.]  IX  EE  BAENED'S   BANKING   CO.  43 

to  Prescott  &  Co.,  in  order  to  take  up  the  bill  on  its  becoming  due. 
On  the  following  day  the  bank  stopped  payment  without  having  made 
the  remittance  to  Prescott  &  Co.  ;  the  bill  was  in  consequence  dis- 
honored, and  was  subsequently  paid  by  Massey,  who  now  claimed  in 
the  winding  up  of  the  bank  to  recover  the  whole  amount  paid  to  it  for 
remittance  to  London  as  aforesaid. 

Mr.  Roxburgh  and  Mr.  Badcock,  for  Massey,  relied  on  Farley  v. 
Turner,  submitting  that  their  case  was  stronger  than  that  of  the  cred- 
itor in  that  case,  inasmuch  as  here  neither  drawer  nor  acceptor  was  a 
customer  of  the  bank. 

Sir  R.  Baggallay  and  Mr.  KeJceioich,  for  the  ofiicial  liquidator  of  the 
company,  were  not  called  upon. 

The  Master  of  the  Rolls.  This  is  a  different  case  from  Farley 
V.  Turner.  There  the  countr}'^  bank,  after  receipt  of  the  mone}'',  and 
instructions  from  Goodwin  to  pay  the  bill  which  was  about  to  fall  due 
at  the  office  of  their  Loudon  correspondents,  Robarts  &  Co.,  remitted 
bills  to  Overend  and  Gurney  for  discount,  directing  the  latter  to  hand 
the  proceeds  to  Robarts  &  Co.,  to  provide  them  with  funds  to  meet 
the  bill.  Robarts  &  Co.  accepted  the  money  for  the  purpose,  but 
afterwards,  having  heard  of  the  stoppage  of  the  country  bank,  held 
their  hands,  and  allowed  the  bill  to  be  dishonored.  The  question 
then  arose,  for  whom  they  held  the  money  provided  to  meet  the  bill, 
whether  for  the  general  creditors  of  the  country  bank,  or  Goodwin, 
and  it  was  held  to  be  for  the  latter.  There  the  country  bank  had 
applied  the  money,  and  the  town  agent  had  received  it  for  the  spe- 
cific purpose.  Here  there  was  no  application  of  the  money,  and  Mr. 
Massey  has  no  lien,  but  merely  a  right  to  prove  along  with  the  general 
creditors.' 

1  .Johnson  v.  "Whitman,  10  Abb.  Pr.  n.  s.  Ill  Contra. 

A  dopo.sit  of  nioiK-y  in  a  bank,  wliicli  agrees  in  coupideration  thereof  to  meet  a  lia- 
bility frtjin  the  dcpoHitor  to  a  tiiird  person  is  often  regarded  as  a  trust.  But,  in  the 
absence  of  evidence  that  the  money  was  delivered  as  a  special  deposit,  the  transaction 
does  not  create  a  tru.st,  but  only  an  oblitration  of  the  banker  to  tlic  depositor  to  pay  out 
of  its  general  assets  the  claim  of  the  tliird  person.  The  dejjositor  may  sue  in  special 
astumfisil  for  the  breach  of  this  obligation.  Hill  v.  Smith,  12  M.  &  W.  G18.  Whether 
tlie  third  person  may  sue  on  tliis  promise  will  dc'jtond  upon  the  law,  in  a  given  juris- 
diction, as  to  priimises  to  one  person  of  performance  t<j  another.  In  Eiiglanil,  there- 
fore, the  benefici.'iry  has  no  right  against  the  banker.  Williams  v.  Everett,  14  East, 
582 ;  Stewart  v.  Fry,  7  Taimt.  3:yj ;  Yates  v.  Ikdl,  .3  H.  &  Al.  Cr.l ;  Wedlako  r.  Hurley, 
1  Cr.  &  J.  83 ;  Cobb  c.  IJecke,  G  Q.  13.  O.'K),  9.'J3,  per  I'.attcson,  J. ;  Moore  v.  Hncliell,  27 
L.  J.  Ex.  3  ;  Henderson  i:  Ilothscbild,  33  Ch.  I)  4.')9.  See,  to  the  same  effect,  Wilson  t'. 
Lizardi,  1.5  La.  2.5.'i ;  Conery  v.  Webb,  12  La.  An.  282 ;  Nicholson  v.  Crook,  .'iCi  Md.  55. 

In  the  United  States,  generally,  tlie  opposite  rule  pre\ails.  But  the  ]>romi.seo  may 
defeat  the  beneficiary's  right  by  a  release  or  modification  of  the  banker's  duly  at  any 
time  before  the  beneficiary  ha.s  expre.s.sed  his  a.s.sent  to  the  original  obligation.  Moore 
V.  Meyer,  57  Ala.  20,  22  {semhir);  Mayer  v.  Chattahoochee  Hank,  51  (in.  325;  Hrock- 
meyer  r.  Nat.  Hank,  40  K.as.  370,  744;  Siinimton  t:  First  Hank,  24  Minn.  210;  Hnt- 
ler  V.  Duprat,  51  N.  Y.  Sup'r  Ct.  77 ;  Tl'Una  Hank  v.  Fourth  Hank,  40  N.  Y.  82;  First 
Bank  v.  Higbeo,  109  Pa.  130.     But  sec,  contra,  lie  Lo  Blanc,  14  Hun,  8. 

If  there  ia  a  mere  deposit  with  directions  to  the  banker,  but  no  agreement  by  him 


4A  STEELE  V.   CLATvK.  [CIIAP.  L 


STEELE  V.  CLARK. 
In  the  Supreme  Court,  Illinois,  June  Term,  1875. 

[Reported  in  77  Jllinois  Reports,  471.] 

]\Ir.  Justice  Breese  delivered  the  opinion  of  the  Court.  This  pro- 
ceeding was  commenced  before  the  County  Court  of  Clinton  County, 
and  taken  by  appeal  to  the  Circuit  Court,  wherein  a  judgment  was 
rendered  for  the  plaintiffs  for  four  hundred  and  forty-four  dollars,  and 
costs,  from  which  judgment  tliis  api)eal  is  prosecuted  .by  tlie  defend- 
ants. It  is  a  case  in  which  the  administrator  of  one  Thomas  Moore, 
deceased,  presented  a  claim  for  allowance  against  the  estate  of  John 
Brewster,  deceased,  for  one  thousand  dollars.  The  county  court 
allowed  the  claim  to  the  extent  of  seven  hundred  and  seventy-seven 
dollars,  and,  on  appeal  to  the  Circuit  Court,  the  same  was  reduced  to 
the  above  sum  of  four  hundred  and  forty-four  dollars. 

A  brief  statement  of  the  facts  will  show  that  this  judgment  ought 
not  to  stand. 

It  appears  that  Thomas  Moore,  the  father  of  Tliomas  Moore  in 
behalf  of  whose  estate  this  claim  is  prosecuted,  died  in  1852  or  1853, 
leaving  an  estate  in  land,  which  descended  to  his  son  Robert  Moore, 
this  Thomas  Moore,  and  a  granddaughter,  Mary  Stephens ;  that,  in 
1850,  Thomas  Moore  the  younger,  then  about  twenty  years  of  age, 
left  this  State  for  California,  and  has  not  been  lieard  from  since  1866. 
In  1853  proceedings  were  instituted  for  a  partition  of  tlie  estate  of 
Thomas  Moore,  senior,  and  one  Alfred  Tucker  was  appointed  a  com- 
missioner to  make  partition  and  pay  over  the  proceeds  to  tiiese  several 
heirs,  each  share  amounting  to  four  hundred  and  forty-four  dollars, 
which  the  commissioner  received  in  money,  and  paid  to  John  Brewster, 
deceased,  the  guardian  of  Mary  Stephens,  her  share,  to  Robert  Moore 
his  share,  and,  without  any  autliority  whatever  as  appears,  paid  to 
Robert  his  brother  Tliomas's  share.  In  1859  or  1860,  Robert  Moore, 
being  in  debt  to  his  brother  Thomas  in  this  sum  of  four  hundred  and 
forty-four  dollars,  and  also  to  other  parties,  agreed  to  sell  his  farm 
to  Brewster  to  pay  his  debts,  and  among  them  this  debt  to  his 
brother  Thomas.  For  what  price  the  farm  was  sold  does  not  appear. 
Brewster's  administrator  proved  one  payment  of  more  than  two  hun- 
dred dollars  to  one  Fouke,  a  creditor  of  Robert,  and  offered  to  show 
for  what  the  farm  was  sold  by  Robert  Moore  to  him.  This  evidence 
the  court  refused  to  admit.  The  defence  was  the  Statute  of  Frauds 
and  Perjuries  and  the  Statute  of  Limitations. 

to  pay  out  of  Tiis  general  assets  the  depositor's  liability  to  a  third  person,  the  last 
has,  obviously,  no  right  against  the  banker.  Ex  parte  Heyvvood,  2  Rose,  355 ;  Grant 
r  Austen,  .3  Price,  58  ,  Seaman  v.  Whitnoy,  24  Wend.  260;  Lane  v.  Magdeburg  (Wist 
1891),  51  N.  W.  R.  582 ;  Caisse  v.  Tharp,  5  Can  Pr  R.  205.  —Ed. 


SECT.  I.]  STEELE   V.    CLAKK.  45 

To  sustain  the  recovery,  it  is  urged  by  appellee  that  this  was  a  trust 
fund,  and  the  recovery  not  barred  by  the  Statute  of  Limitations.  It 
is  claimed  and  argued  by  appellee  that  Brewster,  in  his  lifetime,  had 
become  security  for  the  payment  of  the  money  received  by  Eobert 
Moore,  belonging  to  his  brother  Thomas,  which  fact,  they  insist, 
gives  it  the  character  of  trust  money,  and  not  barred  by  the  Statute 
of  Limitations.  X  careful  examination  of  the  record  betrays  the 
existence  of  no  such  fact.  Neither  Douglierty,  Dill,  the  Clarks,  nor 
Mrs.  Pratt,  called  for  appellee,  state  au\'thiug  of  the  kind.  The  sim- 
ple fact  is,  that  Brewster,  on  the  purchase  of  Robert  Moore's  farm, 
undertook  to  pay  this  debt  Robert  then  owed  his  brother  Thomas.  As 
Dougherty  states  it,  Brewster  told  his  brother  he  had  bought  Robert 
^loore's  farm,  and  had  become  paymaster  to  Thomas  for  Robert 
Moore.  ^This  was  in  18G0.  At  this  time,  the  relation  of  these  parties 
was  that  of  debtor  and  creditor. 

It  has  been  settled,  by  repeated  decisions  of  this  court,  that,  in  case 
of  simple  contracts,  the  person  for  whose  benefit  a  promise  is  made 
may  maintain  an  action  in  his  own  name  upon  it,  although  the  consid- 
eration does  not  move  from  him.  Eddy  v.  Roberts,^  Brown  v.  Strait,'^ 
Bristow  V.  Lane,^  where  the  English  and  American  authorities  are 
considered. 

In  18G0,  when  this  promise  was  made  by  Brewster  to  Robert  Moore, 
admitting  it  was  made,  Thomas  Moore  had  a  clear  right  of  action 
against  Brewster  to  recover  the  amount,  had  he  chosen  to  accept 
Brewster  as  his  creditor,  and,  if  dead,  his  administrator  had  a  right  of 
action  for  five  years  thereafter.  These  proceedings  were  instituted 
more  than  thirteen  yeare  thereafter,  and  some  years  after  the  death  of 
Brewster. 

Under  this  state  of  fact,  we  are  at  a  loss  to  perceive  why  the  claim 
was  not  barred  by  tlie  .Statute  of  Limitations.  We  fail  to  see  in  the 
transaction  any  indication  of  a  trust,  to  any  greater  extent  than  any 
ordinary  assumpsit  by  one  person,  for  a  valuable  consideration,  to  pay 
a  debt  lie  owes  to  a  third  i)art3',  instead  of  pa^'ing  to  tlie  party  with 
whom  he  contracted. 

A  court  of  equity  has  jurisdiction  in  all  cases  of  strict  trust,  liut 
where  a  mere  confidence  is  reposed,  or  a  credit  given,  it  will  not  exer- 
cise such  jurisdiction.  As  this  Court  said,  in  Doyle  v.  INIurphy,!  the 
various  affairs  of  life,  in  ahnost  every  act  between  individuals  in  trade 
and  coiiiiiieice,  involve  tlie  reposing  of  confidence  or  trust  in  eacli  otlirr, 
and  yet  it  has  never  been  SMi)posed  that,  because  such  confidence  or 
trust  in  tlie  integrity  of  another  lias  been  extended  and  abused,  there- 
fore a  court  of  efpiity  would,  in  all  such  cases,  assume  jurisdiction. 

It  is  true,  as  there  saifl,  whon  property  is  conveyed  or  given  l)v  one 
person  to  another,  to  hold  for  the  use  of  a  third  ])erson,  such  a  trust 
would  tlicref)y  be  created  as  would  give  equity  jurisdiction  to  compel 
the   application  to  the  jjurposes  of  the  trust.     But  such  is  not  this 

^    17  III,  505.  2  19  ill.  89  »  21  ib.  194.  ■»  22  ib.  502. 


46  STEELE  V.   CLARK.  [CHAP.  L 

case.  Here  was  the  sale  of  a  farm  by  the  owner,  to  pay  his  debts, 
among  which  was  this  debt  due  his  brother  Thomas,  and  whicli  Brew- 
ster assumed  to  pay.  It  is  an  ordinary  case  of  debtor  and  creditor, 
and  the  Statute  of  Limitations  was  a  bar  to  a  recovery. 

This  money,  when  in  the  hands  of  Tucker,  the  commissioner,  was  n. 
trust  fund,  from  which  he  had  no  right,  of  his  own  mere  motion,  to 
part,  and  place  in  the  hands  of  Robert  Moore,  who  is  not  shown  to 
have  had  any  authority  to  receive  it.  There  can  be  no  doubt  the 
estate  of  Thomas  Moore  has  a  right  of  action  against  Tucker,  to 
recover  this  money,  with  interest. 

There  are  some  objections  made  on  excluding  the  testimony  of 
Steele,  one  of  the  administrators  of  Brewster,  called  by  the  defence. 
AVe  see  no  grounds  for  excluding  his  testimony,  he  being  called  to 
state  what  he  knew  of  the  case  before  he  became  administrator,  and 
afterwards.  At  first  blush  he  seems  to  have  been  competent,  not 
being  within  any  of  the  exceptions  of  section  2,  chapter  51,  R.  S. 
1874:,  title  "  Evidence  and  Depositions." 

It  was  also  error  to  exclude  the  testimony  of  French,  as  offered  by 
appellant,  and  also  that  of  Parks,  as  to  the  price  to  be  paid  for  the 
farm,  and  how  it  was  paid. 

For  the  errors  above  discussed,  the  judgment  is  reversed  and  the 
cause  remanded.  Judgment  reversed.'^ 

1  Re  Empress  Co.,  16  Ch.  Div.  125,  127,  129,  per  Jessel,  M.R. ;  Douglass  v.  Martin, 
103  111.  25  (no  relief  in  equity)  ;  Arnwine  v.  Carroll,  4  Hal.  Ch.  620  (no  relief  in 
equity) ;  Kobinson  v.  Denson,  3  Head,  395,  397  (semUe)  Accord. 

But  see,  contra,  Albretch  v.  Wolf,  58  HI.  186  (Statute  of  Limitations  no  bar) ;  Car 
ley  V.  Graves,  85  Mich.  483  (plaintiff  not  obliged  to  come  in  with  general  creditors  in 
case  of  bankruptcy).    , 

The  distinction  between  a  trust  and  a  purely  personal  obligation  in  the  nature  of  a 
debt  is  illustrated  by  certain  cases  of  assignment  of  partncr.ihip  assets  to  a  partner. 
If  the  assignment  is  upon  trust  to  pay  out  of  the  as.sets  the  firm  creditors,  they  will 
be  preferred  to  the  separate  creditors  of  the  assignee  partner.  Payne  v.  Hornby, 
25  Beav.  280,  Topliff  v-  Vail,  1  Harriiig.  Ch  340,  Renfrew  v.  Pearce,  68  111.  125; 
Parker  v.  Merritt,  105  111.  293,  Kobinson  v.  Roose  (111.  1891),  28  N  E.  R.  821  ,  Tal- 
bot V  Pierce,  14  B.  Mon  195  ;  Harmon  t-  Clark,  13  Gray,  114,  Wildes  v  Chapman, 
4  Edw.  Ch.  669  ;  Deveau  v.  Fowler,  2  Paige,  400  (see  Robb  i;.  Stevens,  1  Clarke,  Ch. 
195)  ;  High  v.  Lack,  Phill.  Eq  (N  Ca.)  175  ,  Buck  Co.  v.  Johnson,  7  Lea,  282,  Rogers 
V.  Nichols,  20  Tex.  719;  Shackelford  v.  Shackelford,  32  Grat.  481. 

If,.on  the  other  hand,  the  assignment  to  the  partner  is  absolute,  the  assignors  being 
content  to  take  the  assignee's  personal  agreement  to  pay  the  firm  liabilities,  and  if  the 
a.ssignment  is  not  fraudulent,  the  firm  creditors  will  have  no  greater  rights  against  the 
firm  assets  so  transferred  than  ngainst  any  other  assets  of  the  assignee  partner  And 
if  that  partner  becomes  insolvent,  the  firm  creditors  will  either  get  nothing  until  the 
separate  creditors  are  paid  in  full ,  (Et  parte  Freeman,  Buck,  471  ;  Ex  parte  Appleby. 
2  Dea.  482;  Thomas  v  Shillilteer,  1  M.  &  W.  124;  Re  Isaacs,  3  Savvy.  35;  Robb  r 
Mudge,  14  Gray,  534,  Wild  v  Dean,  3  All.  579;  Scull  v.  Alter,  16  N.  J.  147;)  or,  in 
jurisdictions  where  a  stranger  to  the  promise  may  sue  tlie  promisor,  they  may  share 
ratably  with  the  separate  creditors  Re  Downing,  3  N.  B.  R.  748  ;  Re  Long,  9  N  B.  R. 
227 ;  Re  Rice.  9  N  B.  R.  373;  Re  Collier,  12  N.  B.  R.  266 ;  Re  Lloyd,  22  Fed.  Rep. 
88;  Ho}-t  i;  Murphy,  18  Ala.  316;  Devol  v.  Mclnto.sh.  23  Ind  529;  Dunlap  v.  Mo 
Neil,  35  Ind.  316;  Goudy  v.  Werbe,  117  lud  154  (semble).  —  Eu. 


SECT.  I.]  m'FADDEN   V.   JENKYNS.  47 


M'FADDEN  v.  JENIvYNS. 

In  Chancery,  before   Lord  Lyndhurst,  C,  June  21,  22,  Novem. 

BER  4,  1842. 

[Reported-in  1  Phillips,  153.] 

In  the  mouth  of  February,  1841,  Thomas  Warry  lent  the  sum  of 
^^500  to  the  defendant  Jenkyns.  In  the  month  of  December  fol- 
lowing, Thomas  Warry  died,  and  the  defendant  George  Warry,  having 
shortly  afterwards,  as  his  personal  representative,  brought  an  action 
against  Jenkyns  to  recover  the  £500,  this  bill  was  filed,  alleging  that 
the  money  was  originally  intended  to  be  repaid  in  a  short  time,  but 
that,  soon  after  the  loan  had  been  made,  Thomas  Warry  sent  a  verbal 
message  to  Jenkyns  by  one  Bartholomew,  a  common  friend  of  theirs, 
desiring  him  no  longer  to  consider  the  money  as  due  to  hnn,  Thomas 
Warry,  but  to  hold  it  "upon  trust  for  the  plaintiff,  to  be  at  her 
absolute  disposal,  for  her  own  use  and  benefit."  That  Bartholomew 
delivered  the  message,  and  Jenkyns  accepted  the  trust ;  and  that  the 
transaction  was  communicated  to  the  plaintiff  both  by  Thomas  Warry 
and  by  Jenkyns,  and  that  Jenkyns  afterwards,  during  the  lifetime  of 
Warry,  and  witli  his  knowledge,  paid  to  the  plaintiff  the  sum  of  £10 
in  part  execution  of  the  trust ;  and  that  Thomas  Warry  had  never 
afterwards  demanded  payment  of  the  money,  or  any  part  of  it. 

The  bill  prayed  that  it  might  be  declared  that,  under  those  circum- 
stances, Jenkyns  became  and  was  a  trustee  of  the  £500  for  the  plain- 
tiff, and  that  he  might  be  decreed  to  pay  the  £490  residue  thereof 
to  the  plaintiff,  and  that  the  defendant  George  Warry  might  be 
restrained  from  further  proceeding  in  his  action  against  Jenkyns. 

The  case  made  by  the  bill  was  verified  by  the  aflidavits  of  the 
plaintiff,  Bartlioloniew,  and  Jenkyns,  and  upon  those  allidavits  Vice 
Chancellor  Wigram  granted  an  injunction  to  restrain  the  prosecution 
of  the  action  until  the  hearing  of  the  cause,  the  plaintiff  submitting  to 
pay  the  £500  mto  court. 

The  defendant  George  Warry  now  moved,  by  way  of  appeal,  be- 
fore the  Lord  Chancellor,  that  the  Vice  Chancellor's  order  might  be 
discharged. 

Mr.   Wukcfu'hl  and  Mr.  lunn/oii,  in  support  of  the  appeal  motion. 

Mr.  Shnrpe  and  Mr.  G.  Jinssell.,  contra.^ 

Tmk  I>oi!I>  Chancellor.  This  was  an  appeal  from  a  judgment  of 
Vice  (Jhaiifcllor  Wigram,^  upon  a  motion  for  nn  iiijuiution  to  stay 
proceedings  at  law.  The  facts  stated  in  siipiiort  of  the  motion  were 
shortly  these,  'i'he  trstator,  Thomas  Warry,  liad  lent  a  sum  of  .£'500 
to  the   defendant  -Jenkyns,   to   lie    returned  within    a   short   period. 


'  The  argumciit.s  of  ronnsol  are  omitted.  —  Eo. 
2  Keported  iu  1  Ihire,  458.  —  Eu. 


48  m'fadden  v.  jenkyns.  [chap.  i. 

Some  time  afterwards  AVarry  sent  a  verbal  direction  to  Jenkyns  to 
bold  the  j£500  in  trust  for  Mrs.  M'Faddcn.  This  he  assented  to,  and, 
upon  her  application,  paid  her  a  small  sum,  £10,  in  respect  of  this 
trust.  The  main  question  was,  whether,  assuming  the  facts  to  be  as 
stated,  this  transaction  was  binding  upon  tlie  estate  of  Tliomas  Warry. 
The  executor  had  brought  an  action  to  recover  the  .£500  so  lent  to 
Jenkyns.  It  is  obvious  that  the  rights  of  the  parties  could  not,  with 
reference  to  this  claim,  be  finally  settled  in  a  court  of  law  ;  and,  if  the 
trust  were  completed  and  binding,  an  injunction  ought  to  be  granted. 

Some  points  were  disposed  of  by  the  Vice  Chancellor  in  this  case, 
which  are  indeed  free  from  doubt,  and  appear  not  to  have  been  con- 
tested in  this  Court,  viz.  that  a  declaration  by  parol  is  sufficient  to 
create  a  trust  of  personal  property  ;  and  that .  if  tlie  testator,  Thomas 
"Warry,  had,  in  his  lifetime,  declared  himself  a  trustee  of  the  debt  for 
the  plaintiff,  that  in  equity  would  perfect  the  gift  to  the  plaintiff  as 
against  Thomas  Warry  and  his  estate.  The  distinctions  upon  this 
subject  are  undoubtedly  refined,  but  it  does  not  appear  to  me  that 
there  is  any  substantial  difference  between  such  a  case  and  the  pres- 
ent. The  testator,  in  directing  Jenkyns  to  hold  the  money  in  trust 
for  the  plaintiff,  which  was  assented  to  and  acted  upon  by  Jenkyns, 
impressed,  I  think,  a  trust  upon  the  money  which  was  complete  and 
irrevocable.  It  was  equivalent  to  a  declaration  by  the  testator  that 
the  debt  was  a  trust  for  the  plaintiff.^ 

The  transaction  bears  no  resemblance  to  an  undertaking  or  agree- 
ment to  assign.  It  was  in  terms  a  trust,  and  the  aid  of  the  court  was 
not  necessary  to  complete  it.  Such  being  the  strong  inclination  of 
my  opinion,  and  corresponding,  as  it  appears  to  do,  with  that  of  the 
learned  judge  in  the  court  below,  and  with  the  decision  of  the  Master 
of  the  Eolls  in  the  case  to  which  he  refers,^  I  cannot  do  otherwise 

1  Lord  Lyndhurst  is  not  alone,  among  eminent  jndges,  in  failing  to  discriminate 
between  a  trust  and  a  debt.  Lord  Crauworth,  in  Burrowes  v.  Gore,  6  H.  L.  C  907, 947, 
thought  au  agreement  to  give  a  sum  of  money  as  a  marriage  portion  made  the 
obligor  a  trustee,  "  because,  if  a  person  agrees  to  give  a  sum  of  money  as  an  induce- 
ment to  anotlier  to  marry  his  daughter,  and  that  marriage  takes  place,  in  that  case 
the  parent  who  so  agrees  to  give  the  money  is  considered  as  holding  the  money  upon 
trust."  Lord  Chelmsford  seems,  p.  942,  to  have  entertained  the  same  view.  But 
this  opinion  was  conclusively  answered  by  two  of  their  associates.  .  Lord  St.  Leonards 
said,  p.  951 ;  "  It  is  ratlier  difficult  to  say  how  he  is  to  be  trustee  *of  his  own  propertj-. 
If  he  had  agreed  to  give  his  own  estate,  or  any  tangible  thing  that  was  actually 
marked  out,  then  of  course  he  would  have  become  a  trustee,  because  he  would  have 
agreed  to  give  and  settle  that  identical  property ;  but  if  he  agrees  to  pay  a  sum  of 
money  out  of  his  own  assets,  I  do  not  see  how  that  can  constitute  him  a  trustee  to 
bind  him  in  all  respects  in  that  relation."  Lord  Wensleydale,  p.  968,  is  even  more 
explicit.  "The  obligor  held  notliing  in  trust.  lie  is,  as  he  would  1)0  in  the  otiier 
supposed  cases,  a  debtor  merely.  It  seems  to  me,  with  great  rej<i)ect  to  my  noble 
and  learned  friend,  somewhat  overstrained  to  say  that  the  a])pellant  can  be  treated, 
by  virtue  of  the  recital  of  the  settlement,  as  if  he  had  already  paid  himself  the  whole 
.£2,00u  in  cji-sli,  and  had  it  in  his  hands."  See  to  the  same  effect  Morgan  i;.  Laiiviere, 
I*  K.  7  H.  L.  423;  Rice  v.  U.  S.,  21  Ct.  CI.  413.—  Ed. 

2  Wheatley  v.  Turr,  I  Keen,  551.  —  Ed. 


SECT.  I.]  IN  EE  CAPLEN'S  ESTATE.  49 

upon  this  motion,  and  in  this  stage  of  the  cause,  than  refuse  the 
application. 

I  must  not,  however,  be  understood  as  pronouncing  any  conclusive 
opinion  upon  the  facts  of  the  case.  The  witness  Bartholomew,  a 
professional  gentleman,  1  believe,  swears  distinctly  and  in  positive 
terms  as  to  the  direction  given  by  the  testator ;  but  there  are  some 
improbabilities  in  the  case,  and  it  is  difficult  to  say,  as  the  Vice  Chan- 
cellor justly  observes,  what  may  be  the  result  at  the  hearing  of  the 
cause.  As  the  appeal  appears  to  have  been  encouraged,  if  not  sug- 
gested, by  the  Vice  Chancellor,  the  motion  must  be  refused  without 
tosts.^ 


In  re  CAPLEN'S  ESTATE.     BULBECK  v.  SILVESTER. 

In  the   Chanceky  Division,  before  Sir  George  Jessel,  M.  R., 

January  29,.  1876. 

[Reported  in  45  Law  Journal  Reports,  280.] 

The  testatrix,  Ann  Caplen,  in  June,  1865,  lent  the  sum  of  £300  to 
her  niece's  husband,  Morris  Steniug,  on  the  security  of  his  promissory 
note  for  £300  and  interest,  payable  on  demand.  She  received  the  in- 
terest during  the  rest  of  her  life,  and  made  no  demand  for  payment  of 
the  note.  Ann  Caplen  died  on  the  30th  of  IMay,  1875,  and  after  her 
death  the  note  was  found  uncancelled  among  her  papers  by  her  execu- 
tors, George  Silvester  and  John  Walls,  who  demanded  payment.  It 
was  then  alleged,  on  the  part  of  Gainor  Bulbeck,  Ann  Caplen's  sister, 
that  about  September,  1872,  Ann  Caplen  told  Morris  Stening  she 
wanted  him  to  liold  the  £300  for  the  benelit  of  Gainor  Bulbeck  and 
her  daughters,  Mrs.  Stening,  Mrs.  Edwards,  and  Mrs.  Harvey ;  and 

'  In  Rycroft  i>.  Chri.sty,  .3  I?cav.  2.18;  Mnert  v.  MoMsard,  1  Moo.  &  P.  8;  Hoberts 
r.  Roberts,  12  .Iiir.  n.  fl.  071  (rovcr.sing  s.  c.  1 1  Jnr.  N.  s.  992) ;  Parker  i:  Stones,  38 
L.  J.  Ch.  40;  Mincliin  v.  Mf-rrill,  2  ICdw.  333,  339  {spinlilc) ;  Eaton  v.  Cooke,  25  N.  J. 
Ef|.  .55;  Ilnrlbnt  i;.  Unrllmt,  49  Ilun,  189,  -th^ro  was,  as  in  the  principal  case,  a 
novation,  and  the  hcMioficiary  wius  successful.  See  also  Owings  u.  Owiugs,  1  liar. 
&  G.  484. 

In  Vandcnherg  n.  Palmer,  4  K.  &  J.  204,  Wood,  V.  C,".,  found  sullicicnt  evidence  of 
intention  on  the  part  of  the  creditor  to  make  /i/mdc//"  trustee.  In  Paterson  v.  Murphy, 
II  Flare,  8h,  a  n)ortj;af;ce  1)V  a  certiiin  writiii^r  directed  his  niortpjagor  to  invest.  £200, 
part  of  the  mortgage  delit,  when  it  hecaine  due,  in  consfds,  and  after  the  decease  of 
the  mortgagee  to  transfer  the  consols  and  pay  the  dividends  to  certain  persons  n.'unod. 
Before  anv  investment  was  made,  the  mortgagee  connfermande<i  tlio  instructions,  lint 
it  was  d(!cid<'d  hy  tiie  same  judge  that  the  first  writing  createtl  an  irrevocable  trust  iii 
favor  of  the  persons  therein  named.  This  case,  like  the  overruled  statements  iii 
Ilichanlson  i'.  Hichardson,  infra,  illustrates  the  extreme  length  to  wliich  tliis  learned 
Vice  (,'hancellor  was  ready  to  go  in  treatit:g  improper  K'ft''  •'>•''  trusts.  See,  further, 
Lambe  v.  Ortou,  1  Dr.  &  Sm.  125  ;  Maguire  i;.  Dodd,  9  Ir.  Ch.  452.  —  Ei>. 

4 


50  IN  RE  caplen's  estate.  [chap,  l 

directed  him  after  her  own  death  to  pay  the  interest  to  Gainor  Bulbeck 
diu-inii  her  life,  and  to  divide  the  principal  sum  among  her  said  daugh- 
ters after  her  decease. 

The  case  was  verified  by  the  affidavit  of  Morns  Stening,  and  Gainor 
Bulbeck  and  her  daughters  deposed  that  Ann  Caplen  had  in  similar 
terms  communicated  to  them  her  intention  with  regard  to  the  £300. 

The  question  whether  this  direction  created  a  trust  of  the  £oOO  was, 
by  arrangement,  raised  on  a  summons  in  a  suit  for  the  administration 
of  Ann  Caplen's  estate,  which  summons  was  now  adjourned  into 
court. 

Mr.  Golt^  for  Gainor  Bulbeck.  A  parol  declaration  is  enough  to 
create  a  trust  of  personal  property.  The  direction  to  hold  the  £300 
for  Mrs.  Bulbeck  and  her  children  was  equivalent  to  a  declaration  by 
the  testatrix  that  the  debt  was  to  be  held  on  trust  for  them.  M'Fadden 
V.  Jenkyns. 

[The  Master  of  the  Rolls.  The  difficulty  you  have  to  contend 
with  is,  that  the  note  was  payable  on  demand.  As  payment  was  not 
demanded,  there  was  no  debt.] 

The  direction  was  equivalent  to  a  demand.  Instead  of  saying,  "  Pay 
me,"  the  testatrix  said,  "Pay  my  sister  and  her  daughters  after  my 
death  "  ;  and  the  debtor  assented.  Even  admitting  that,  strictly  speak- 
ing, 3'ou  cannot  create  a  trust  unless  you  confer  a  legal  title  on  the 
trustee.  Richards  v.  Delbridge.  Here  a  legal  title  was,  in  fact,  con- 
ferred. The  obligation  on  a  promissory  note  payable  on  demand  may 
be  discharged  by  parol.  Foster  v.  Dawber.^  What  took  place  was 
equivalent  to  a  release  of  the  debt,  in  consideration  of  the  debtor 
agreeing  to  apply  the  money  as  directed.  The  testatrix  did  not  intend 
to  release  the  debtor,  except  upon  terms  of  payment  to  these  persons. 
The  money  was  at  home  in  the  debtor's  hands,  and  there  was  no  need 
or  indeed  power  to  give  him  a  right  to  sue.  The  testatrix,  therefore, 
did  all  in  her  power,  ^ave  the  formality  of  giving  up  tlie  security,  to 
create  a  trust,  and  I  submit  that  a  trust  was  well  created. 

Mr.  B.  B.  Swan.,  for  the  executors,  was  not  called  on. 

The  Master  of  the  Rolls.  The  evidence  does  not  satisfy  me  that 
Mrs.  Caplen  intended  to  create  an  irrevocable  trust.  Whether  she  did 
or  not,  it  is  clear  that  at  law  she  remained  owner  of  the  note,  and  did 
not  therefore  create  a  complete  trust.  The  question  that  I  have  to 
decide  is,  whether  the  direction  to  Mr.  Stening  was  enough  to  make 
him  a  trustee.  Mr.  Colt  argued  that  it  was,  for  he  said  the  direction 
impressed  a  trust  on  the  money,  and  a  declaration  of  trust  by  the  legal 
owner  was  not  wanted.  I  think,  however,  that  a  mere  agreement  on 
the  part  of  the  debtor  to  apply  the  money  according  to  the  direction  of 
the  creditor  will  not  do.  There  is  no  magic  in  words,  and,  as  I  ex- 
plained in  Richards  v.  Delbridge,  a  man  may  make  himself  a  trustee 
without  declaring  that  he  is  a  trustee  in  so  many  words  ;  but  he  must 

1  6  Ex.  839. 


SECT.  I.]  IN  KE   CAPLEN'S   ESTATE.  51 

do  something  or  other  that  is  equivalent  to  declaring  that  he  is  a  trustee. 
la  M'Fadden  v.  Jenkyns,  Lord  Cotteuham  certainly  said  :  "  The  testa- 
tor, in  directnig  Jenkyns  to  hold  the  money  in  trust  for  the  plaintiff, 
which  was  assented  to  and  acted  upon  by  Jenkyns,  impressed,  I  think, 
a  trust  upon  the  money  which  was  complete  and  irrevocable."  But  I 
do  not  think  that  applicable  to  the  present  case,  where  there  is  nothing 
to  show  that  the  owner  of  the  note  intended  to  part  with  her  legal  title 
to  the  money. 

I  think,  therefore,  that  the  executors  are  entitled  to  require  payment 
of  the  note.^ 

1  Chandler  i-.  Chandler,  62  Ga.  612;  Evans's  Estate,  6  Pa.  Co.  437  Accord.  See 
also  Kelly  v.  Koberts,  40  N.  Y.  432 ;  Fairchild  v.  Feltman,  32  Hun,  398.  Gaskell  v. 
Gaskell,  2  Y.  &  J.  502,  is  hardly  to  be  supported,  as  the  facts  seem  to  show  a  corapleto* 
novation.  The  case  is  criticised  adversely  in  Vaudeuberg  v.  Palmer,  4  K.  &  J.  204, 
214-215. —Ed. 


52  ASHLEY  V.   DENTON.  [CHAP.  I. 


SECTION   II. 
A  Trust  distinguished  from  a  Bailment. 

ANONYMOUS. 

In  the  Common  Pleas,  Easter  Term,  1339. 

[Reported  in  Year  Book  12  ^  13  Edward  III.,  244.] 

Detinue  of  chattels  to  the  vahie  of  £100  against  an  Abbot  by  a 
man  and  his  wife,  on  a  bailment,  made  by  the  father  of  the  wife  when 
she  was  under  age,  of  chattels  to  be  delivered  to  his  daughter,  when 
she  was  of  full  age,  at  her  will ;  and  they  counted  that  he  delivered 
pots,  linen,  cloths,  and  £20  in  a  bag  sealed  up,  &c.  —  Pole.  He 
demands  money,  which  naturally  sounds  in  an  action  of  Debt  or 
Account;  judgment  of  the  count.  —  Stonford.  We  did  not  count  of 
a  loan  which  sounds  in  Debt,  nor  of  a  receipt  of  money  for  profit, 
which  would  give  an  action  of  Account,  but  of  money  delivered  in 
keeping  under  seal,  etc.,  which  could  not  be  changed;  and  if  your 
house  were  burnt,  that  would  be  an  answer.  —  Schardelowe. 


Answer  over. 


1 


ASHLEY'S    ADMINISTRATORS  and  Heirs  v.   DENTON. 
In  the  Court  of  Appeals,  Kentucky,  April  13,  1822. 

[Reported  in  1  Liltell,  86.] 

Per  Curiam.     Thomas  Denton  and  wife  exhibited  this  bill  in  chan- 
cery against  the  administrators  of  Thomas  Ashley,  deceased,  char- 
ging that  said  decedent  was  the  son  of  the  female  complainant  by  a 
'former  husband ;   that  during  her  widowhood  slie  became  possessed 
of  sundry  slaves,  which  passed  to  her  from  the  estate  of  a  deceased 

1  A  bailment  of  good.s  by  A  to  B,  to  deliver  to  C,  or  for  the  use  of  C,  gave  C,  as 
in  the  principal  case,  the  right  to  maintain  detinue  against  B.  Y.  B.  34  Ed.  I.  2.39 
{semhie) ;  Y.  B.  .39  Ed.  Ill  17  A ,  Y.  B.  .3  Hen.  VI.  43-20 ;  Y.  B.  9  Hen.  VI.  38-13  ; 
Y.  B.  9  Hen.  VI.  60,  A-8 ;  Y.  B.  18  Hen.  VI.  9,  A-7;  Y.  B.  19  Hen.  VI  41-84; 
Y  B.  21  Hen.  VI.  29-13  ,  Y.  B.  39  Hen  VI  44-7  ;  Y.  B.  ^  Ed.  IV.  8.5  ,  Y.  B.  9  Ed. 
IV.  52-15;  Y.  B.  21  Ed.  IV,  55-27;  Brand  v  Lifley,  Yelv.  164;  Evans  v  Marlett, 
1  Ld  Ray.  271  ;  Atkin  v.  Barwick,  1  Stra  165;  Hill  v.  Secretan,  1  B.  &  P.  315; 
Haille  v.  Smith,  1  B.  &  P.  563  ;  Berly  v.  Taylor,  5  Hill,  577  ;  Sturtevant  v.  Onser, 
24  N.  Y.  538;  Edwards  v.  Campbell,  23  Barb.  423;  Brown  v.  O'Brien,  1  Rich.  268; 
Magdeburg  v.  Uihlein,  53  Wis.  165  Accord.  — Ev. 


• 


SECT.  II.]  ASHLEY  V.   DENTON.  53 

relative  in  North  Carolina,  wliere  she  resided,  and  that  she  removed 
with  them  to  Kentuckj^,  in  some  of  the  upper  counties  ;  that  she  in- 
trusted the  negroes  aforesaid  with  her  said  son,  for  the  purpose  of  his 
going  in  search  of  a  suitable  residence  for  her,  and  there  making 
preparations  for  her  family,  and  then  he  was  to  return  and  move  her  to 
it ;  that  the  son  took  possession  of  the  slaves,  for  the  purposes  afore- 
said, and,  to  her  astonishment,  did  not  return,  nor  was  he  heard  of  for 
several  years,  and  was  then  discovered,  by  a  person  employed  for  the 
purpose  of  searching  for  him,  to  be  living,  with  the  slaves  aforesaid, 
in  the  State  of  Tennessee.  Some  time  after  his  discovery,  he  removed 
to  the  new  county  of  Butler  in  this  State,  where  he  resided  until  his 
death,  in  1817.  That,  after  his  return  to  Kentucky,  he  refused  to  sur- 
render them,  when  demanded  ;  that  they  were  increased,  and  are  in 
the  possession  of  said  administrators  and  heirs.  They  allege  that  they 
are  fully  able  to  substantiate  said  facts  by  proof,  and  pray  that  the 
restoration  of  the  slaves  may  be  decreed,  with  payment  of  the  hire. 

The  defendants,  in  their  answer,  insisted  that  there  was  no  equity  in 
the  bill,  and  that  the  remedy  was  at  law.  The  court  below  decreed 
the  slaves  to  be  restored,  and  the  hire  to  be  paid.  From  this  decree 
the  administrators  and  heirs  of  Ashley  appealed.^ 

It  is  now  contended  that  the  Chancellor  had  no  jurisdiction  of  the 
case,  and  that  the  remedy  of  the  appellee  is  properly  at  law.  On  the 
other  side,  it  is  insisted  that  the  claim  of  the  appellants  is  founded  on 
a  trust,  and  that  the  son  took  and  held  the  slaves  for  the  use  of  his 
mother,  and  therefore  the  Chancellor  properly  entertained  jurisdiction 
of  the  case. 

It  is  true  that  uses  and  trusts  are  a  favored  part  of  the  jurisdiction 
of  the  Chancellor,  and  frequently  he  will,  on  that  ground,  decide  in 
cases  where  the  law  may  be  adequate  to  give  relief.  But,  notwith- 
standing this  acknowledged  authority,  it  cannot  be  extended  to  every 
case  where  one  party  has  trusted  another,  or,  in  other  words,  placed  a 
confidence  which  has  been  abused.  If  so,  every  ease  of  bailment, 
and  every  instance  of  placing  chattels  by  loans  or  hire,  would  be 
swallowed  up  by  courts  of  equity.  Nay,  every  case  where  credit  was 
given  for  del)t  or  duty  would  soon  be  drawn  into  the  sanje  vortex. 
It  ought,  then,  to  be  confined  to  cases  of  controlling  legal  rights, 
vested  and  remaining  in  trustees,  created  as  such  in  some  j^roper 
mode,  and  not  l)e  extended  to  all  cases  of  abused  conndcnce.  If  llio 
case,  therefore,  of  the  appollee  is  to  1)0  tested  by  the  original  bill 
alone,  we  have  no  doubt  it  nuikes  out  no  case  for  tiie  interposition  of 
the  Chancellor;  that  placing  the  slaves  in  the  possession  of  her  son, 
for  the  purpose  of  preparing  and  im|)roving  her  a  home,  and  iiis  riglit 
then  to  cease,  was  not  such  a  trust  as  would  sustain  tlie  bill,  and  (hat 
she  had  a  j)l:iin  and  adequate  remedy  at  law.^ 

'  Only  so  miicli  of  flio  r.iMc  is  Kivon  a?  rnlatos  to  tlio  point,  of  jiirisilictioii  — Ed. 
'  I'y  tiif-  ol'l  Teutonic  law  a  l)iiilor'.s  rciiUMly  ili<l  not  oxtenil  beyond  the   liailoc.     If 
the  bailee  bailed  or  sold  the  goods,  or  lost  them  against  his  will,  the  sub-Iiailec,  the 


54  ASHLEY   V.   DENTON.  [CIIAP.  I. 

purchaser,  aud  oven  the  thief,  were  secure  from  any  attack  by  the  original  bailor. 
This  doctrine  persisted  for  centuries  iu  Gcrmauy  and  France.  Ilcusler,  Die  Gewero, 
487  ;  Carliu,  Niemand  liuun  auf  cinen  Andcrcu  Tficiir  Hcclit  iibertragen  als  er  selbst 
hat,  42,  48 ;  Jobbc'-Duval,  La  Revendicjitiou  des  Meubles,  80,  165.  lu  England  the 
ancient  tradition  was  maintained  in  the  fourteenth  century.  Y.  B.  24  Ed.  111.  41, 
A-22.  Thorpe  (a  judge  three  years  later)  :  "  I  cauuot  recover  against  any  one 
exce])t  him  to  whom  the  charter  was  bailed";  Y.  B.  43  Ed.  111.29-11.  Belknap 
(afterwards  C.  J.)-.  "  In  the  lifetime  of  the  bailee  Detinue  is  not  given  against  any 
one  except  the  bailee,  for  he  is  chargeable  for  life."    !Seo  also  3  llarv.  L.  Itev.  33. 

It  is  hardly  necessary  to  add  that  tlie  conception  of  a  genuine  rigiit  in  rem  has  long 
beeu  familiar,  and  that  a  bailor  may  now  have  Detinue  or  Trover  against  any  subse- 
quent possessor  as  well  as  against  the  bailee.  "McCombie  r.  Davis,  6  East,  .538  ;  Baehr 
V.  Clark  (Iowa,  1891),  49  N.  W.  R.  840;  Galvin  v.  Bacon,  11  Me.  28;  Stanley  v.  Gay- 
lord,  1  Cush.  536 ;  Saltus  v.  Everett,  20  Wend.  267 ;  Wooster  v.  Sherwood,  25  N.  Y. 
278;  Howland  v.  Woodruff,  60  N.  Y.  73,  79;  Edwards  v.  Dooley,  120  N.  Y.  540; 
Church  V.  Melville,  17  Oreg.  413.  —  Ed. 


SECT,  m.]  HODGE  V.    CHURCHWARD.  .    55 


SECTION  III. 
A  Trust  distinguished  from  an  Equitable   Charge. 

HODGE  V.   CHURCHWARD. 

In  Chancery,  before  Sir  Launcelot  Shadwell,  V.  C,  December 

11,  1847. 

[Reported  in  16  Simon,  71.] 

John  Churchward,  by  his  will,  dated  the  10th  of  December,  1808, 
devised  certain  freehold  and  eopj'hold  teuements  to  his  son  Matthew 
for  life,  without  iinpeachnaent  of  waste :  "  after  his  decease  to  the 
first,  second,  third,  and  fourth  sons,  and  so  on,  lawfully  begotten, 
paying  to  my  wife,  Grace  Churchward,  his  mother,  £16  a  year  of  law- 
ful money  of  Great  Britain,  quarterly,  for  life ;  also  to  my  daughter, 
Mary  Churchward,  £10  a  year  of  lawful  money  of  Great  Britain, 
quarterly,  for  life." 

The  testator  died  in  February,  1809,  and  thereupon  the  son  en- 
tered into  and  had  continued  ever  since  in  possession  of  the  tene- 
ments. He  paid  his  mother  her  annuity  of  £16  a  year  until  her 
death;  and  he  paid  his  sister  her  annuity  of  £10  a  year  for  some 
years  after  the  testator's  death  ;  but  had  not  made  any  payment  in 
respect  of  it  since  1817.  The  bill  was  filed  in  August,  18-16,  by  the 
sister  and  her  husband,  claiming  to  be  paid  the  arrears  of  her 
annuity. 

Mattiiew  Churchward  insisted,  by  his  answer,  that  the  claim  was 

barred  by  the  Statute  of  Limitations,  3  &  4  Will.  IV.  chap.  27.'^ 
« 

^  §  2t.  "  No  person  claiming  any  laml  or  ront  in  equity  shall  bring  any  suit  to 
recover  the  same  hut  witliin  the  period  during  which  ...  lie  luiglit  liave  made  aa 
entry  or  dictrcsH  or  hronglit  an  actiun  to  recover  the  same  resjjoctivoly  if  lie  had  heen 
entitled  at  law  to  such  an  interest,  (jr  right  in  or  to  the  same  a.s  he  shall  chiini  tliureiu 
in  equity." 

§  2.').  "  Provided  .  .  .  that  when  any  land  or  rent  .shall  he  vested  in  a  trustee 
upon  any  express  trust,  the  riglit  of  the  ceshii  que  trust  ...  to  hring  a  suit  against 
the  trustee  .  .  .  shall  he  der-mcMl  to  have  first  accrued  ...  at  and  not  hefore  tlio 
time  at  which  such  land  or  rent  ahull  liave  i)eeu  conveyed  to  a  purchaser  for  valuahlo 
consideration,"  &c. 

Prior  to  this  statute  there  wa.s  no  statutory  har  to  the  right  tfi  enforce  an  eiiuitahlo 
charge  upon  land  in  the  nature  of  an  annuity.  C-'ollins  v.  (ioodall,  2  Vcrn.  2.'$.') ;  Aston 
»).  Aston,  1  Ves.  26.3;  Pomfret  v.  Windsor,  2  Ves.  483;  Stackliouso  v.  Harnston,  10 
Ves.  4M.  Nor  did  this  statnfo  ajiply  to  siuh  charges  upon  personalty,  lloch  v.  Callon, 
r,  Hare,  Ml  ;  lie  A.shweirs  Will,  .Johns.  112. 

In  the  ahsence  of  local  statutes  a  charge  like  that  in  the  principal  case  is  enforce- 
able in  this  country  indefinitely.     Perkins  v.  Cartmoll,  2  Del.  Cli.  102;  Pcttiugill  v. 


56  JACQUET  V.   JACQUET.  [CIIAP.  I. 

Mr.  Shehbearej  for  the  plaintiff,  argued  that  the  word  "paying" 
made  the  obligation  to  pay  the  annuity  a  personal  trust;  inasmuch  as 
that  word  referred  to  the  person  wlio  was  to  make  the  pa3'ment,  and 
not  to  the  property  out  of  which  it  was  to  be  made  ;  and  consequently 
that  the  plaintiff's  claim  was  saved  by  the  2r)th  section  of  the  act. 
AVard  v.  Arch  ; '  Young  v.  Lord  Waterpark.- 

Mr.  Jfidins  and  Mr.  Whitbread,  for  the  defendant,  said  that  the 
word  "  paying  "  made  the  annuity  a  rent  charge  ;  and  therefore  the 
case  was  within  the  second  and  third  sections  of  the  act. 

The  Vice  Chancellor.  The  word  "  paying"  creates,  not  a  trust, 
but  a  charge  or  condition  ;  and  therefore  the  plaintiff 's  claim  is  ]>arred 
by  the  statute.  Bill  dismissed  with  costs. 


JACQUET  V.   JACQUET. 
In  Chancery,  before  Sir  John  Romilly,  M.  R,  June  12,  15,  1859. 

[Reported  in  27  Beavan,  332.] 

The  testator  was  resident  in  Jamaica.  He  had  two  plantations, 
called  "Content"  and  "Epsom."  By  his  will,  dated  in  1832,  the 
testator  requested  his  executors  to  "pay  and  discharge  his  funeral 
expenses  and  all  just  and  legal  demands  that  might  be  against  him," 
"  with  the  payment  of  which  (he  said)  I  do  charge  and  make  liable  all 
my  property  in  Jamaica  both  real  and  personal,"  &c.  "  It  is  my 
desire,  and  I  do  hereby  direct,  that  my  executors  hereinafter  named, 
or  such  of  them  as  shall  qualify  under  this  my  will,  do  dispose  of  the 
freehold  of  Content  plantation,  with  the  buildings  thereon,"  &c.,  "the 
moneys  arising  from  the  sale  thereof  to  be  applied  to  the  liquidation  of 
my  debts,  and  the  overplus  (if  any)  to  fall  mto  the  residue  of  my 

Pettingill,  60  Me.  411  ;  Crawford  v.  Severson,  .5  Gill,  443;  Greenwood  v.  Greenwood, 
5  Md.  .334;  Kane  v.  Bloodgood,  7  Johns.  Ch.  90,  116.  In  Millington  v.  Hill,  47  Ark. 
301,  Loder  v.  Hatfield,  71  N.  Y.  92,  and  Yearly  v.  Long,  40  Oh.  St.  27,  a  devise  of 
land  charged  with  an  annuity  was  so  worded  as  to  impose  a  personal  liability  upon 
the  devisee  in  the  nature  of  a  debt.  It  was  held  that,  as  soon  as  the  statute  barred 
the  personal  claim,  the  right  to  enforce  the  equitable  charge  was  also  barred. 

If  the  devi.see  was  in  fact  a  tru.stee,  i.e.  if  the  land  was  devi.sed  to  him  upon  tfu.^t 
to  pay  the  annuity,  the  case  was  not  within  §  24  of  the  statute  of  3  &  4  Will.  IV. 
c.  27.  Ward  ;;.  Arch,  A  Sim.  472 ;  Young  v.  Waterpark,  13  Sim.  204,  1.5  L.  J.  Ch.  63  ; 
Cox  V.  Dolman,  2  D  M.  &  Q.  592;  Playfairs  v.  Cooper,  17  I5cav.  187;  Snow  v.  Booth. 
8  D.  M.  &  G.  69;  Knight  v.  Bowyer,  2  DeG.  &  J.  421  ;  Hrighff  v.  Larcher,  27  Beav. 
130:  Obee  v.  Bishop,  1  D.  F.  &  J.  137  ;  Commissioners  r.  Wylirandt,  7  Ir.  Eq.  .580. 
But  the  rule  applied  in  these  cases  was  materially  modified  in  England  by  37  &  38 
Vict.  c.  57,  §  10.     Hughes  v.  Coles,  27  Ch.  D.  231.  —  Ed. 

1  12  Sim.  472, 

2  13  Sim.  204. 

\    ■ 


SECT.  III.]  JACQUET  V.   JACQUET.  57 

estate.  All  the  rest,  residue  and  remainder  of  my  property  in  Ja- 
maica, but  subject  to  the  payment  of  my  debts  and  legacies  comprised 
of  Epsom  plantation,"  &c.,  "and  everything  else  on  the  plantation 
or  elsewhere  in  Jamacia,  of  whatsoever  nature  and  kind,"  he  gave, 
devised,  and  bequeathed  to  certain  persons  whom  he  named. 

The  testator  died  in  1834,  and  in  1843  the  plantations  were  sold  to 
Philip  Jacquet  and  the  money  was  in  court.  The  Chief  Clerk  found 
that  a  debt  of  £318  was  still  due  to  Spicer,  and  that  he  had  a  claim  to 
that  amount  on  the  trust  funds.  The  question  was,  whether  the  real 
estate  was  charged  with  the  debt,  and  whether  his  remedy  against  the 
estate  and  the  produce  was  or  not  barred  by  the  Statute  of  Limitations. 

The  plaintiff  took  out  a  summons  to  vary  the  certificate  by  finding 
that  he  had  no  claim  on  the  trust  funds. 

The  Master  of  tde  Rolls.  I  think  that  this  will  created  a  trust 
for  the  payment  of  debts  as  regards  the  Content  plantation  ;  but  with 
respect  to  the  other  plantation  there  is  a  mere  charge  of  debts.  J 
am  of  opinion  that  the  statute  does  not  apply  as  regards  the  Con- 
tent  estate  ;  but  I  wish  to  consider  whether  the  transaction  of  1843 
amounted  to  a  sale  to  Mr,  Philip  eJacquet,  in  consideration  of  his  pay- 
ing a  sum  of  money  into  court ;  because,  if  it  did,  I  am  of  opinion 
that  the  fund  is  affected  by  the  trusts  specified  by  the  will,  and  is  now 
applicable  to  the  payment  of  the  debts. 

I  came  to  the  conclusion  that  the  debts  were  charged  on  the  whole 
of  the  property,  but  the  trust  was  limited  to  the  Content  estate,  which 
the  testator  directed  to  be  sold  by  his  executors,  and  the  produce 
applied  in  payment  of  his  debts.  The  testator  died  in  IKU,  and, 
under  the  Statute  of  Limitations,  passed  in  1837,  the  lapse  of  twenty 
years  bars  any  power  of  recovery  in  respect  of  the  charge,'  but  it  docs 
not  bar  the  riglit  of  recovery  as  regards  the  Content  estate,  as  to 
which  a  trust  was  created. - 

1  think  the  result  of  the  transaction  in  1843  is,  that  Philip  Jacquet 
is  the  purchaser  for  value  of  the  Content  estate,  and  from  that  time 
the  statute  begins  to  run  in  liis  favor  under  the  25th  section  of  3  &  4 

'  Francis  v.  Grovcr,  5  Ilaro,  39;  l'rou<l  v.  Vto\u\,  32  Beav.  234;  Dickerson  v. 
Teafldale,  1  1).  .1.  &  S.  r)2  ;  Dundas  v.  Blake,  11  Ir.  E(|.  138. 

*  I'rior  to  tho  .slaliitf!  3  &  4  Will.  IV.  c.  27,  tliorc  was  do  limitntion  of  time  within 
whicli  a  char/^o  upon  land  for  tlic  paymont  of  (lelits  and  lf{!;arios  must  bo  enforced. 
YdTfrnn  r.  Core,  I  Sch.  &  Lof.  107  ;  ilarj,'rcavcs  i-.  Michell,  6  Mad.  326.  Crallim  v. 
(Jnltori,  3  Bcav.  1.     Sec  also  supra,  .'>.'),  n.  1. 

2  Truxt  to  pill/  fycr/ririis.  —  Gousli  v.  Bult,  16  Sim.  323  ;  Watson  v.  Saul,  1  Giff.  188  ; 
Thom.son  v.  Kiwtwood,  2  Aj)p.  Cas.  2l.'>. 

Trust  to  pay  IMts.  —  Hughes  v.  Wynne,  T.  St,  U.  307 ;  Blower  v.  Blower,  .5  Jur. 
N.  fl.  33,  Kelly  r.  Kelly.  6  Ir.  L.  Rec  n.  «.  222;  Dillon  r.  Cruise,  3  Ir.  Eq.  11.70: 
Blair  »-•  Nii;;ent„  y  Ir  Eij  K.  400 ;  Hunt  r.  r.ateni.an,  10  Ir.  Kf].  U  300;  U.  S.  I'.aiik 
V.  Beverly,  I  How.  134  ;  CarrinRton  v.  Manning,  13  Ala.  611,  032,640  (srmNi') ;  Steele 
V.  Steele,  04  Ala.  438,  400  [s<mlil<-);  Starke  r.  Wilson,  O.'i  Ala.  .570,  .')70  {snnhJr)  ;  Alex- 
ander V.  McMurry,  8  Watts,  .')04  ,  Baldy  c  Brady,  15  I'a.  103,111.  (But  see  Mao 
V.  Warner,  4  Whart.  455;  Trinity  Church  v.  Watson,  .50  I'a.  518.)  Accord.—  Ed. 


58  JACQUET  V.  JACQUET.  [CHAP.  I. 

"Will.  IV.  c.  27 ;  but  as  against  the  produce  of  the  Content  estate,  the 
statute  does  not  appl}',  and  it  remains  liable  for  the  payment  of  the 
testator's  debts.  I  cannot  make  out  how  much  of  the  fund  in  court 
is  attributable  to  the  Content  estate,  and  that  must  be  ascertained  by 
an  inquiry. 

I  Mill,  however,  make  this  declaration :  that  so  much  of  the 
money  now  in  court  as  is  properly  attributable  to  the  purchase  of 
the  Content  estate,  under  the  deed  of  1843,  is  applicable  to  the 
payment  of  Mr.  Spicer's  debt. 


SECT.  IV.]  HAMMOND   V.   MESSENGER.  '  5^ 


SECTION  rv. 

A  Trust  of  a  Chose  in  Action  distinguished  from  an  Assignment 

HAMMOND  V.  IMESSENGER, 

In  Chancery,  before  Sir  Lancelot  Shadwell,  V.  C, 

July  5,  1838. 

[Reported  in  9  Simon,  327.] 

The  Vice  Chancellor.^  If  this  case  were  stripped  of  all  special 
circumstances,  it  would  be  simply  a  bill  filed  by  a  plaiutiff  who  had 
obtained  from  certain  persons  to  whom  a  debt  was  due  a  right  to  sue 
in  their  names  for  the  debt.  It  is  quite  new  to  me  that,  in  such  a  sim- 
ple case  as  that,  this  Court  allows,  in  the  first  instance,  a  bill  to  be  filed, 
against  the  debtor,  by  the  person  who  has  become  the  assignee  of  the 
debt.  I  admit  that,  if  special  circumstances  are  stated,  and  it  is  repre- 
sented that,  notwithstanding  the  right  which  the  party  has  obtained  to 
sue  in  the  name  of  the  creditor,  the  creditor  will  interfere  and  prevent 
the  exercise  of  that  right,  this  Court  Avill  interpose  for  the  purpose  of 
preventing  that  species  of  wrong  being  done  ;  and,  if  the  creditor  will 
not  allow  the  matter  to  be  tried  at  law  in  his  name,  this  Court  has  a 
jurisdiction,  in  the  first  instance,  to  compel  the  debtor  to  pay  the  debt 
to  the  plaintiff ;  especially  in  a  case  where  the  act  done  by  the  creditor 
is  done  in  collusion  with  the  debtor. 

If  bills  of  this  kind  were  allowable^  it  is  obvious  that  they  would  be 
pretty  frequent;  but  I  never  remember  any  instance  of  such  a  bill  as 
this  being  filed,  unaccompanied  by  special  circumstances. 

The  only  question  then  is,  whether,  on  this  record,  there  are  any 
special  circumstances  which  create  a  ground  for  a  court  of  equity  to 
entertain  the  bill   against  the  dclitor. 

The  bill  sets  out  with  a  statement  that  a  partnership  was  carried  on 
between  Wilks  and  Wooler ;  and  a  variety  of  instruments  and  trans- 
actions are  stated,  the  result  of  which  was,  that  the  partnership  was  to 
be  dissolved,  that  the  i)laintiff  was  to  pay  the  debts  due  from  the  part- 
nership, and  to  be  entitled  to  the  partnership  assets.  'I'lieii  it  repre- 
sents that  McHsenger,  the  demurring  party,  at  the  time  of  the  agree- 
ment for  the  dissolution  of  the  partnership,  was  justly  indebted  to  the 
firm  in  the  sum  of  £80  for  coal  and  coke  sold  and  delivered  to  hiin  by 

1  Tho  statonmnt  of  the  ca.se,  arguineuta  of  counuel,  and  a  portion  of  the  opinion  are 
omitted.  —  Ei>. 


CO  HAMMOND   V.    MESSENGER.  [CIIAP.  I. 

the  firm,  and  that  ^Messenger  is  now  indebted  to  the  plaintiff  in  the  said 
sum  of  £80  as  the  assignee  of  sucli  debt.  Therefore  the  debt  in  ques- 
tion was,  purely,  a  debt  recoverable  at  law.  Then  the  bill  states  a 
notice  given  to  Messenger  by  the  plaintiff  to  pay  the  debt  to  him.  It 
then  states  that  on  the  2d  of  October  the  plaintitT  called  on  Messenger, 
and  applied  to  him  for  payment  of  the  sum  of  £80,  and  fully  apprised 
him  of  the  plaintiff's  right  and  title  to  demand  and  receive  payment  of 
it  from  him  ;  that  Messenger,  for  the  first  time,  pretended  that  the 
plaintiff  was  not  entitled  to  receive  the  debt,  but  that  he  was  bound 
to  pay  it  to  Wilks  and  Wooler.  That,  of  itself,  creates  no  equitable 
ground. 

The  bill  then  alleges,  in  the  usual  manner,  that  the  plaintiff  had  ap- 
plied to  Messenger  for  the  payment  of  tlie  debt,  and  that  Messenger, 
combining  and  confederating  with  Wilks,  had  refused  so  to  do,  and 
pretended  that  there  was  no  such  debt :  that,  however,  gives  no  equity. 
Then  it  charges  that  Messenger,  on  receiving  notice  of  the  plaintiff's 
right  and  title  to  the  debt,  became  and  still  was  a  trustee  of  it  for  the 
plaintiff.  That  again  does  not  make  him  a  trustee,  that  is  to  say,  such 
a  trustee  as  the  plaintiff  has  a  right  to  sue  in  equity,  unless  the  whole 
circumstances  of  the  case  taken  together,  do  show  that  the  plaintiff  has 
a  right  to  sue  in  equity. 

When  I  come  to  the  prayer,  I  find  that  it,  first  of  all,  prays,  "  that 
Messenger  may  be  decreed  to  pay  to  the  plaintiff"  the  sum  of  £80,  so  due 
to  the  firm  of  Wilks  and  Wooler  as  aforesaid,  or,  if  necessary,  that  an 
account  may  be  taken."  Now  no  case  whatever  is  stated  to  show  the 
necessity  for  an  account,  and  therefore  it  must,  of  necessity,  stand 
as  a  mere  prayer  that  Messenger  may  be  decreed  to  pay  the  debt.  It 
tlien  proceeds  as  follows :  "  or  that  the  plaintiff  may  be  at  liberty  to 
use  the  name  of  the  defendants,  Wilks  and  Wooler,  in  an  action  at  law  to 
be  brought  by  him  against  Messenger."  There  is,  however,  no  case 
stated  which  shows  that  Wilks  &  Wooler  have  at  all  interfered  to  pre- 
vent, or  that  they  intend  to  prevent  the  plaintiff  from  using  their  names 
at  law. 

It  seems  to  me  that  this  case  is  altogether  denuded  of  those  special 
circumstances,  the  existence  of  which  is  the  only  ground  for  this  Court 
to  lend  its  aid  to  a  party  who,  like  the  plaintiff,  has  taken  an  assign- 
ment of  a  debt ;  and,  consequently,  the  demurrer  must  be  allowed.^ 

Demurrer  aUoived,  ivith  liberty  to  the  plaintiff  to  amend  Jiis  bill. 

1  Cator  V.  Burke,  1  Bro.  C.  C.  434 ;  Keys  r.  Willia-ms,  .3  Y.  &  C.  Ex.  462 ;  Clark  v. 
Cort,  Cr.  &  Ph.  1.54,  159  (semble);  Kawson  v.  Samuel,  Cr.  &  Ph.  161,  178  {semhla)' ; 
Wilson  V.  Short,  6  Hare,  366,  382  ,  Bolton  r.  Powell,  14  Beav.  275, 2  D.  M.  &  G.  1,  8.  c. ; 
I)e  Pothonier  v.  Matto.s,  E.  B.  &  E.  461,  467;  Hoskin.s  v.  Holland,  44  L.  J.  Ch.  273; 
Roxburghe  v.  Cox,  17  Ch.  D.  520,  526  {spmhie) ;  TIayward  v.  Andrew.s,  106  U.  R.  672 ; 
Chicago  Co.  t:  Xichol=i,  57  111  464;  Adair  v.  Winchester,  7  Gill  &  ,J  114;  Walker  v. 
Brooks,  125  Mass.  241  (correcting  the  statements  in  2  Story,  Eq.  .Jur.  §  1057o,  and 
Story,  Eq.  PI.  §  153) ;  Carter  v.  United  Co.,  1  Johns.  Ch.  463;  Ontario  Bank  v.  Mum- 
ford,'  2  Barb.  Ch.  596,  615;  Smiley  n.  Bell,  Mart.  &  Y.  378  ;  Moseley  v.  Bonsh,  4  Rand. 
892  Accord.     The  common  law  right  of  the  assignee  to  use  the  assignor's  name  ii 


SECT.  IV.]  EGBERTS  V.    LLOYD.  61 


ROBERTS  V.   LLOYD. 

In  Chancery,  Before  Lord  Langdale,  M.E.,  February  18, 

March  21,  1840. 

[Reported  in  2  Beavan,  376.]  ' 

On  the  2.oth  of  October,  1821,  Lord  Mostyn  and  Mr.  Mostyn 
executed  a  bond  in  a  penal  sum  for  securing  to  Rebecca  Roberts  the 
sum  of  £1,000  and  interest;  and  on  the  12th  day  of  February,  1828, 
Rebecca  Roberts,  having  three  daughters,  Jane,  the  wife  of  James 
Batten,  the  plaintiff,  Maria  Catherine  Roberts,  and  the  defendant 
Margaret  Roberts,  executed  a  deed  poll,  whereby,  after  reciting  the 
bond,  and  that  the  sum  of  .£1,000  remained  due  thereon,  and  that  she 
was  desirous  of  making  provision  for  her  daughters  and  the  children 
of  her  daughter  Jane,  she  assigned  to  the  defendant  David  Lloyd, 
his  executors,  administrators,  and  assigns,  the  said  bond  and  the 
money  due  thereon,  and  her  right  and  interest  in  and  to  the  same,  on 
trust  to  permit  her,  Rebecca  Roberts,  to  receive  the  interest  thereof 
during  her  life,  and  after  her  death  to  pay  her  daughter  Jane  the  sum 
of  i?333  Qs.  8d.,  being  one  third  of  the  said  sum  of  ^^1,000,  and  as  to 
the  sum  of  ,£G6fi  l^.s-.  4r?.,  the  remaining  two  thirds  of  tlie  money  due 
on  the  bond,  on  trust  to  place  out  the  same  in  government  or  other 
good  securities,  or  to  allow  the  same  to  remain  on  the  present  secu- 
rity, and  to  permit  her  daughter,  the  plaintiff,  and  the  defendant 
Margaret,  to  receive  the  interest  and  dividends  thereof  during  their 
joint  lives  ;  and  after  the  death  of  either  to  permit  the  other  to  receive 
the  interest  of  one  moiety  thereof,  and  to  pay  the  other  moiety  to  the 
children  of  Jane  Batten  ;  and  after  the  death  of  the  survivor  of  the 
plaintiff  and  her  sister  Margaret,  to  divide  the  remainder  of  the  £1,000 
amongst  the  children  of  Jane  Batten  ;  and  the  deed  poll  contained  a 
power  of  attorney  to  enable  David  Lloyd  to  get  in  the  debt. 

rccognizod  also  in  T'liillips  v.  Wilson,  25  111.  A  p.  427  ;  Troedor  v.  Hyams,  1.V3  Mass. 
.MG;  Coffey  v.  White,  17  I'liila.  230.     Sec  .also  Aulton  i'.  Atkins,  18  C.  B.  249,  2G0. 

Taylor  r.  Heeso,  44  Mi.ss.  8'J ;  Townsend  v.  Carpenter,  11  Oh.  21 ,  Kerr  v.  Steeves, 
22  Xew  Rr.  124  Coniru. 

The  dwtrinc  of  the  prinr-ipal  case  results  from  tlio  fact  tiiattlic  so  called  a.ssi^nmeuc 
of  a  chose  in  action  is,  in  reality,  a  power  of  attorney  for  the  attorney's  own  hcnciit, 
i.  e.  the  prorurnl'o  in  rfin  sumn  of  the  Hoinan  law.  2  \W.  (>>ni.  442  ;  1  Siicnce,  K(|.  .Iiir. 
181  ;  3  Harv.  L.  Kev.  340,  .341;  Banfill  v.  Leigh,  8  T.  \{.  .571  ;  Dulhcld  c  Klwcs,  I 
Bligh.  y.  H.  ."JOfi,  per  Suj^den  ;  (Jornrd  v.  Lewis,  L.  R.  2  C.  P.  305, 309 ;  James  v.  Newton, 
142  Ma'<H.  30G,  371. 

Convcrsf-ly,  ii  d'KMiment  in  the  form  of  a  power  of  attorney  to  collect  a  chose  in  action 
for  the  attorney's  henefit,  will  he  treated  as  an  assi/Tnment  under  a  statute  relating  to 
a.ssignnirnts.  Wat.«on  u  llagaley,  la  I'a.  104.  See  also  Keys's  Kstatc,  137  I'a.  .')05 ; 
Read  .'  Long,  4  Yerg.  08.  '  aAV^'I'^^ 

It  is  becau.-*o  a  partial  a-xsignment  of  a  cho.se  in  .nrtion  docs  not  operate  as  a  power  .  Jt^^\,^ 
of  attorney  that  the  partial  a.^signcc  h.os  no  remedy  at  law,  hut  only  in  equity.  Seo  "^  .  ^ 
mfra,  p.  63,  n.  1.  —  Ed. 


I* 


62  ROBERTS  V.   LLOYD.  [CHAP.  L 

At  the  request  of  Mrs.  Roberts,  Lord  Mostyn  paid  to  Jane  Batten 
;f333  6s.  Sd.,  being  the  amount  of  her  future  interest. 

B}'  articles  of  agreement  dated  the  23d  of  May,  1831,  between  Mr. 
Lloyd  of  the  one  part,  and  William,  Joseph,  and  Jane,  the  three  chil- 
dren of  Jane  Batten,  of  the  other  part,  Mr.  Lloyd  promised  to  give  au 
order  on  Lord  Mostyn  for  <£300,  and  the  three  Battens  promised  to 
pay  Mr.  Lloyd  £15  annually  in  lieu  of  the  lawful  interest  of  the 
£'600,  and  to  indemnify  Mr.  Lloyd.  Pursuant  to  these  articles,  Mr. 
Lloyd  gave  the  order,  and  Lord  Mostyn  paid  ^100  on  the  25th  of 
April,  and  .£200  on  the  HOth  of  August,  1831. 

On  the  28th  of  March,  1832,  Lord  Mostyn 'paid  the  Battens  the 
further  sum  of  ^66  13s.  4cZ.,  and  shortly  afterwards  ^100  more. 
These  payments  were  made  in  consequence  of  an  agreement  between 
Lloyd  and  the  Battens  similar  to  that  of  May  23,  1831. 

On  the  11th  of  June,  three  days  after  the  execution  of  the  last 
mentioned  bond,  Mr.  Lloyd  signed  an  order  for  payment  by  Lord 
Mostyn  to  James  Batten  of  another  sum  of  ^100,  and  Lord  Mostyn 
accordingly  paid  it  on  the  27th  of  July,  1832. 

There  was  no  evidence  of  any  further  act  or  interference  on  the 
part  of  Mr.  Lloyd. 

Mrs.  Roberts  died  on  the  22d  of  November,  1832,  and  Jane  Rob- 
erts was  appointed  executrix  of  her  will.  At  the  time  of  Mrs.  Rob- 
erts's death,  the  sum  of  ^200  remained  due  on  the  bond  ;  and  on  the 
30th  of  November  Lord  Mostyn  paid  it  to  Jane  Batten  and  James 
Batten,  as  it  seemed,  without  any  order  or  authority  from  Mr.  Lloyd. 

This  bill  was  filed  by  Maria  C.  Robei-ts,  who  sued  in  forma  pau- 
peris, and  it  prayed  a  declaration  that  the  defendant  David  Lloyd 
had  committed  a  breach  of  trust  in  respect  of  the  sum  of  j^fi66  13s. 
4d,  part  of  the  sum  of  ,£1,000  which  was  secured  to  be  paid  by  the 
defendant  Lord  Mostyn  to  Rebecca  Roberts,  deceased ;  and  that  the 
same  sum  of  £666  13s.  4d.  might  be  secured,  and  that  Lord  Mostyn 
might  be  declared  to  be  answerable  to  the  plaintiff  for  £200  paid  by 
him,  and  for  any  other  sum  which  he  paid  with  knowledge  of  the 
trusts  in  the  bill  mentioned.^ 

Mir.  Femberton  and  Mr.  Kenyon,  for  the  plaintiff. 

Mr.  James  Hussell,  for  the  defendant  Lloyd. 

3fr.  Stuart  and  3fr.  Parry,  for  Lord  IMostyn. 

The  Master  op  the  Rolls.  It  is  plain  that  Mr.  Lloyd  was  fully 
aware  of  the  bond,  and  of  the  deed  poll,  and  of  the  trusts  conferred 
upon  him  ;  that  he  accepted  the  trusts,  and  took  an  active  part  in 
procuring  payment  from  Lord  Mostyn  of  different  sums  of  money  for 
purposes  inconsistent  with  the  trusts  whicli  he  had  accepted.  There 
are  the  articles  of  the  23d  of  May,  1831,  reciting  the  bond  and  deed 
poll,  his  consent  to  the  payment  of  one  third  part  of  the  sum  of 
^1,000  to  Jane  Batten,  and  showing  the  arrangement  under  which  he 

1  The  statement  of  the  case  has  heen  abridged,  and  the  arguments  of  counsel, 
together  with  a  part  of  the  opinion  of  the  Court,  have  been  omitted.— Ed. 


SECT.  IV.]  EGBERTS  V.   LLOYD.  63 

was  to  procure  payment  of  a  further  sum  of  <f  300,  upon  having  pay- 
ment of  the  interest  thereof  secured  to  himself.  There  is  not,  as 
against  him,  direct  evidence  of  an  order  for  the  payment  of  the  ^66 
Vis.  4cZ.,  but  there  is  the  subsequent  bond,  reciting  that  the  sum  of 
£300  remained  due  to  him,  and  this  was  the  sum  actually  due  after 
deducting  the  £GG  13s.  M. 

It  is  clear,  therefore,  that  not  by  his  acquiescence  alone,  but  by  his 
acts,  the  three  sums,  amounting  together  to  £466  13s.  4c?.,  were  with- 
drawn from  the  security  of  Lord  Mostyn's  bond.  Now  it  is  evident 
that  Lord  Mostyn  had  notice  that  the  bond  had  been  assigned  to  Mr. 
Lloyd,  and  he  had  recognized  Mr.  Lloyd  as  the  person  upon  whose 
order  the  money  was  to  be  paid.  On  the  29th  of  August,  1831,  he 
took  from  James  Batten  a  receipt,  stating  that  the  money  was  paid 
by  virtue  of  an  order  made  by  Mr.  Lloyd,  and  that  the  money  was 
part  of  a  bond  debt  originally  due  to  Rebecca  Roberts,  and  afterwards 
by  her  conveyed  to  David  Lloyd  on  trust  for  uses.  On  the  2Sth  of 
March,  1832,  he  paid  the  sum  of  £66  13s.  4d.  on  a  like  receipt,  stating 
an  order  of  Mr.  Lloyd,  and  that  the  money  was  due  on  bond  to 
Rebecca  Roberts,  and  assigned  by  her  to  David  Lloyd,  on  trust  for 
certain  uses;  and  in  July,  1832,  he  paid  the  further  sum  of  £100  on 
the  order  of  Mr.  Lloyd,  which  has  been  proved. 

I  do  not  think  that  Lord  Mostyn  is  answerable  for  any  of  these 
sums :  he  had  the  authority  of  Mr.  Lloyd  for  paying  them,  and  was, 

1  think,  justified  in  making  the  payments. 

But  with  respect  to  the  £200  paid  after  the  death  of  Mrs.  Roberts, 
he  had  no  authority  whatever ;  he  paid  the  money  on  the  receipt  of 
Jane  and  James  Batten,  and  on  delivery  up  of  the  bond ;  but  he  knew 
that  the  right  to  the  money  due  on  the  bond  had  been  transferred  to 
Mr,  Lloyd,  on  trust  for  certain  uses;  and  I  think  that  he  might,  and 
if  he  had  been  duly  cautious  would,  have  refused  payment  without 
the  autliority  of  Mr.  Lloyd  ;  and  that,  if  an  attempt  had  been  jnude 
to  compel  payment  at  law,  tins  Court  would  have  protected  him  ;  and, 
under  tliese  circumstances,  I  think  that  for  the  £200  and  the  interest 
of  it,  he  is  answerable  to  Mr.  Lloyd  and  the  persons  for  whom  Mr. 
Lloyd  is  trustee.* 

'  Jones  V.  FarreH,  1  TiaC.  &  J.  208;  Pannell  v.  Hurley,  2  Coll.  241 ;  "West  London 
Pank  V.  Hcliance  Society,  29  C'h.  Div.  954,  27  Ch.  D.  187;  St.  Julias  v.  Cliarles,  103 
Ma.sH.  202;  Monmonth  Co.  v.  Iliitcliin.son,  21  N.  J.  Eq.  107. 

r,Mtri.\i-  A«xi(;\Mi:\T  op- a  Criosii  in  Action.  —  A  partial  nsHlpnment  resemlileS 
a  tntai  aHsignmeiit  of  a  iho.sc  in  action  in  so  far  tlint  tlif  dolitor,  after  luilicc  of  tlio 
a-tsigninent,  pays  the  ."WHJgnor  the  full  amount  of  tlio  deltt  at  his  peril.  IJriie  r.  15an- 
nister.  3  Q.  H.  Div.  .''.09 ;  Kiehl  r.  Mayor,  G  N.  Y.  179;  Ilrill  v.  TuUlo,  81  N.  V.  454, 
Jones  V.  Afayor,  47  N.  Y.  Sup'r  Ct.  242.     But  sec,  contra,  Fairgreaves  v.  Lcliigh  Co., 

2  I'hila.  182. 

Hut  the  legal  operation  of  a  partial  assignment  is  in  other  respects  widely  different 
from  that  of  a  total  assignment.  The  partial  a.ssignf^e,  for  instiince,  unlike  the  lr)tal 
assignee,  is  not  an  attorney  with  power  to  sue  in  the  iussignor's  name,  and  accordingly 
accjuires  no  rights  at  common  law.    Reg.  v.  Allen,  Owen,  2 ;  Anon.,  Owen.  46 ;  Fairlie 


64  ROBERTS   V.   LLOYD.  [CUAP.  I. 

I  am  therefore  of  opinion,  that  the  plaintiff  is  entitled  to  have  the 
£4GG  Ids.  id.  paid  into  court  by  Mr.  Lloyd,  and  the  £200  paid  by 
Lord  IMostyu,  and  that  she  and  her  sister  are  entitled  to  have  the 
interest  paid  according  to  the  trusts  of  the  deed  poll,  and,  although 
a  pauper,  entitled  to  costs. 

V.  Denton,  8  B.  &  C.  305 ;  Livcrsidgo  v.  Broadbeut,  4  H.  &  N.  603 ;  Maudcville  v. 
Welch,  5  Wheat.  277  ;  Fire  Co.  v.  Felrath,  77  Ala.  194;  Ilassie  v.  G.  I.  W.  U.  Cong.,  35 
Cal.  378;  Grain  v.  Aldrich,  38  Cal.  514;  Cliapman  r.  Shattuck,  8  111.  49;  riiillips  v. 
Edsall,  127  111.  535 ;  Groves  v.  Kuby,  24  Ind.  418 ;  Ellidgc  v.  iStraughn,  2  B.  Mou.  81  ; 
Bank  V.  Trimble,  6  B.  Mon.  599 ;  Getchell  v.  Maney,  69  Me.  442  ;  Exchange  Bank  v. 
McLoou,  73  Me.  498;  Gibson  r.  Cooke,  20  Pick.  15;  Palmer  >\  Merrill,  6  Cush.  282; 
Papineau  v.  Naumkeag,  126  Mass.  372;  Love  v.  Fairfield,  13  Mo.  300;  Beardslee  w. 
Morgner,  73  Mo.  22;  Loomis  v.  Robinson,  76  Mo.  488;  Snperinteudent  v.  Heath,  15 
N.  J.  Eq.  22  ;  Brown  v.  T)mm,  50  N.  J.  Ill  ;  Bower  v.  Hadden  Co.,  30  N.  J.  Eq.  171, 
340;  Field  v.  Mayor,  6  N.  Y.  179;  Stanbery  v.  Smythe,  13  Oh.  St.  495;  Jermyn  v. 
Moffatt,  75  Pa.  399 ;  Carter  ;;.  Nichols,  58  Vt.  553  ;  Brooks  v.  Hatch,  6  Leigh,  534 ; 
S.  V.  K.  Co.  V.  Miller,  80  Va.  821 ;  First  Bank  v.  Kimberlands,  16  W.  Va.  555. 

But  in  equity  the  partial  assignee  is  fully  protected  almost  everywhere.  Row 
V.  Dawson,  1  Ves.  Sr.  331 ;  Yeates  v.  Groves,  1  Ves.  Jr.  280;  Ex  parte  South,  3  Sw. 
392 ;  Ex  parte  Alderson,  1  Mad.  53,  s.  c. ;  Lett  v.  Morris,  4  Sim.  607 ;  Tibbits  v. 
George,  5  A.  &  E.  107  ;  McGowan  v.  Smith,  26  L.  J.  Ch.  8 ;  Ex  parte  Hall,  10  Ch.  Div. 
615;  Ex  parte  Moss,  14  Q.  B.  D.  310;  Trist  v.  Child,  21  Wall.  441,  447  (semhle) ; 
Peugh  V.  Porter,  112  U.  S.  737;  Grain  v.  Aldrich,  38  Cal.  514;  Daniel  v.  Meinhard,  53 
Ga.  359;  Pomeroy  v.  Manhattan  Co.,  40  111.  398;  Phillips  v.  Edsall,  127  HI.  535; 
Groves  v.  Ruby,  24  Ind.  418;  Lapping  v.  Duffy,  47  Ind.  51 ;  County  v.  Hinkley,  62 
Iowa,  637  {semhle);  Ellidge  v.  Straughn,  2  B.  Mon.  81 ;  Bank  v.  Trimble,  6  B.  Mon. 
599;  Exchange  Bank  v.  McLoon,  73  Me.  498;  James  v.  Newton,  142  Mass.  366 
{semhle);  Canty  v.  Latterner,  31  Minn.  239;  Moody  i;.  Kyle,  34  Miss.  506;  Whitney 
V.  Cowan,  55  Miss.  626 ;  Christie  v.  Sawyer,  44  N.  II.  298 ;  Superintendent  v.  Heath,  1 
15  N.  J.  Eq.  22 ;  Bower  v.  Hadden  Co.,  30  N.  J.  Eq.  171,  340 ;  Shannon  v.  Mayor,  37 
N.  J.  Eq.  123;  Kirtland  v.  Moore,  40  N.  J.  Eq.  106 ;  Stanbery  v.  Smythe,  13  Oh.  St. 
495  {semhle) ;  Richardson  v.  Rust,  9  Paige,  243  ;  Field  v.  Mayor,  6  N.  Y.  179 ;  Cook  v. 
Genesee  Co.,  8  How.  Pr.  514;  Hall  v.  Buffalo,  2  Abb.  App.  301,  1  Keyes,  193,  s.  c. ; 
Parker  v.  Syracuse,  31  N.  Y.  376 ;  People  v.  Comptroller,  77  N.  Y.  45 ;  Risley  v.  Phenix 
Bank,  83  N.  Y.  318;  Etheridge  v.  Vernoy,  74  N.  Ca.  800;  Caldwell  v.  Ilartupee,  70 
Pa.  74  (but  see,  as  to  claims  against  a  municipality,  I'hila.'s  Ap.,  86  Pa.  179;  Geist's 
Ap.,  104  Pa.  351) ;  Sykes  v.  First  Bank  (S.  Dak.,  1891),  49  N.  W.  R.  1058  ;  Gardner  v. 
Smith,  5  Heisk.  256  ;'  Harris  Co.  v.  Campbell,  68  Tex.  22  ;  Railway  v.  Gentry,  69  Tex. 
625;  Claflin  v.  Kimball,  52  Vt.  6;  Carter  v.  Nichols,  58  Vt.  553  {semhle);  Burditt  v. 
Porter,  63  Vt.  296  {semhle) ;  S.  V.  R.  Co.  v.  Miller,  80  Va.  821 ;  First  Bank  v.  Kimber- 
lands, 16  W.  Va.  555;  Browu  v.  Johnston,  12  Ont.  Ap.  190  (semhle). 

But  see,  contra,  Wilson  v.  Carson,  IS  Md.  54;  Burnett  v.  Crandall,  63  Mo.  410-, 
Loomis  V.  Robinson,  76  Mo.  488;  Rice  v.  Dudley,  34  ]\Io.  Ap.  383;  Reed  v.  Foote,  36 
Mo.  Ap.  470;  Mo.  Co.  v.  Wright,  38  Mo.  Ap.  141.  (Compare  Fourth  Bank  v.  Noonan, 
88  Mo.  372,  14  Mo.  Ap.  243,  s.  c.) 

A  partial  assignment  of  a  chose  in  action  should  be  carefully  distinguished  from  a 
total  assignment,  partly  for  the  benefit  of  the  assignee,  and  in  trust  as  to  the  residue 
for  the  a.ssignor,  e.  g.  an  assignment  by  way  of  mortgage  of  a  claim  larger  than  the 
mortgage  debt.  Such  a  total  assignment  is  a  perfect  power  of  attorney.  The  so  called 
assignee  may  therefore  collect  the  entire  claim  at  law  and  retain  his  own  share,  but 
must  account  for  the  residue  to  the  assignor.  Burliuson  v.  Hall,  12  Q.  B.  D.  347; 
'lancred  v.  Delagoa  Bay,  23  Q.  B.  D.  239;  Wetmore  v.  San  Francisco,  44  Cal.  294; 
Tripp  i;.  Brownell,  12  Cush.  376;  Macomber  v.  Doane,  2  All.  541  ;  Darling  v.  An- 
drews, 9  All.  106 ;  Warren  /•.  Sullivan,  123  Mass.  283 ;  Keys's  Estate,  137  Pa.  565.  The 
distinction  here  suggested  was  overlooked  in  Loomis  o.  Robinson,  76  Mo.  488.  —  Ed. 


SECT.  lY.]  FOGG  V.   MIDDLETON.  65 


FRANCIS   B.   FOGG,  and  MARY,  his  Wife,   v.   JOHN  IZARD 
MIDDLETON  and  HENRY   MIDDLETON. 

In  the  Court  of  Appeals,  South  Carolina,  February,  1837. 
[Reported  in  2  Hill,  Chancenj,  591.] 

Mrs.  Mart  Middleton,  in  her  lifetime,  conveyed  by  deed  to  her 
second  son,  Mr.  J.  I.  Middleton,  her  large  real  estate  ;  and  by  a  will, 
purporting  to  be  her  last  will  and  testament,  disposing  of  her  personal 
estate,  bequeathed  the  greater  part  thereof  between  her  two  sous,  and 
gave  considerable  pecuniary  legacies  (as  is  alleged,  and  which  does 
not  seem  to  be  contradicted)  to  each  of  her  daughters  (except  Mrs. 
Manigault,  who  was  dead).  Afterwards,  she  executed  another  will, 
and  died  in  1814,  leaving  the  same  in  full  force,  by  which  she  disposed 
of  the  bulk  of  her  personal  estate  to  her  two  sous,  subject  to  certain 
legacies,  and  particularly  a  legacy  to  each  of  her  daughters  of  £100 
sterling,  which  was  greatly  below  the  legacies  under  the  former  will. 

The  personal  estate  of  Mrs.  Middleton  was  appraised  at  upwards  of 
seventy-one  thousand  dollars. 

Some  discontents  naturally  arose  in  the  minds  of  daughters  so 
slightly  provided  for  by  a  wealthy  parent,  who  bestowed  so  large  a 
fortune  on  her  sons.  These  discontents  reached  the  ears  of  Mr.  J.  I. 
Middleton,  with  the  exaggerated  report  that  the  use  or  the  abuse  of 
his  personal  influence  over  an  aged  mother  had  produced  the  effect 
of  diminishing  her  bounty  to  her  daughters,  by  her  last  will  and  testa- 
ment, to  his  benefit.  Being  disturbed  by  these  reports  he  determined 
to  relinquish  the  amount  to  which  his  sisters  would  have  been  entitled 
under  the  former  will  of  their  motiier,  and  accordingly  executed  bonds 
in  trust  to  his  lirother,  Mr.  Henry  Middleton,  with  conditions  for  the 
payment  of  certain  sums  for  the  eldest  daughter  of  each  of  his  sisters, 
and  placed  them  in  the  possession  of  his  lirother,  ]\Ir.  Henry  INIiddle- 
ton.  He  then  went  to  Europe,  aliout  1817,  and  has  renuuned  there 
ever  since,  leaving  his  estate,  including  the  personal  estate,  the  slaves 
derived  from  his  mother's  will,  in  the  hands  of  his  brother,  Henry,  as 
his  attorney  and  agent ;  and  to  apply  the  income  of  the  estate  to  the 
payment  of  the  debts  of  her  estate,  and  the  legacies  under  her  will. 
Tho  debts  have  been  paid,  and  the  bond  to  Mr.  Izard's  family  has  been 
l»aid,  Init  no  paynuiut  haw  l)een  made  on  the  l)ond  for  the  oldigor's 
niece,  Miss  Mary  Rutledge,  now  the  wife  of  Mr.  Fogg,  the  plaintiff. 
After  many  years,  applications  were;  made,  by  letters  to  IMr.  Henry 
Middleton,  as  the  agent  and  attorney  of  Mr.  J.  I.  INIiddleton,  for  i)My- 
meiit,  whieh  apidications,  being  unattended  to,  the  bill  was  filed  in  this 
Court,  whicli  makes  this  case. 

Chancellou  De  Saussuke  made  a  decree  for  the  plaintiffs,  from 
which  the  defendants  appeal. 

5 


GQ  FOGG  V.  l^iroDLETON.  [CHAP.  L 

Petigru,  for  appellants. 

Grimke,  contra. 

Chancellor  Johnston  delivered  the  opinion  of  the  Court.^ 

Under  the  decided  cases,  the  delivery  of  tlie  bond  would  have  been 
established  upon  even  less  evidence  than  was  furnished  on  the  trial. 
As  it  is,  the  proof  fully  sustains  the  Chancellor's  conclusion  on  the 
fact. 

The  law  of  the  case  seems  to  admit  of  little  doubt. 

Cases  have  been  quoted  to  show  that  equity  will  not  aid  a  mere 
volunteer,  where  no  legal  right  has  passed,  or  where  the  action  of  this 
Court  is  necessary  to  constitute  the  relation  of  trustee  and  cestui  que 
trust. 

But  the  delivery  and  acceptance  of  the  bond,  ipso  facto,  constituted 
Mr.  Henry  Middleton  trustee.  The  bond  contained  his  commission, 
and  set  forth  his  duties. 

It  also  vested  in  him  the  debt  of  which  it  was  the  evidence  ;  and  if 
that  debt  should  be  detained,  he  had  a  legal  remedy  to  recover  it. 

AVherever  a  trustee  has  accepted  a  trust,  he  is  bound  to  a  diligent 
discharge  of  his  duties.  If  he  holds  choses  in  action,  with  a  clear 
remedy  on  them,  it  is  unfaithful  in  him  not  to  endeavor  to  enforce 
them.  If  he  holds  a  bond,  even  although  that  bond  is  a  free  gift,  he 
has  no  right  to  remit  it.^ 

It  never  was  the  law  that  a  trustee  was  not  as  amenable  to  a  voluu- 

1  A  portion  of  the  opinion  is  omitted,  and  the  statement  of  the  case  is  abridged. 
—  Eo. 

2  Wigram,  V.  C,  states  the  same  doctrine  very  clearly  in  Fletcher  v.  Fletcher,  4 
Hare,  67,  74,  75  :  "  The  first  proposition  relied  upon  against  the  claim  in  equity  was, 
that  equity  will  not  interfere  in  favor  of  a  volunteer.  That  proposition,  thougii  true 
in  many  cases,  has  been  too  largely  stated.  A  court  of  equity,  for  example,  will  not, 
in  favor  of  a  volunteer,  enforce  the  performance  of  a  contract  in  specie.  Tliat  it 
will,  however,  sometimes  act  in  favor  of  a  volunteer,  is  proved  by  the  common  case 
of  a  volunteer  on  a  bond,  who  may  prove  his  bond  against  the  assets.  Again,  where 
the  relation  of  trustee  and  cestui  que  trust  is  constituted,  as  where  property  is  trans- 
ferred from  the  author  of  the  trust  into  tiie  name  of  a  trustee,  so  that  he  ha.s  lost  all 
power  of  disposition  over  it,  and  the  transaction  is  complete  as  regards  him,  the  trus- 
tee, having  accepted  the  trust,  cannot  say  he  holds  it,  except  for  the  purposes  of  the 
trust;  and  the  Court  will  enforce  the  trust  at  the  suit  of  a  volunteer.  According  to 
the  authorities,  I  cannot,  I  admit,  do  anything  to  perfect  the  liability  of  the  author 
of  the  trust,  if  it  is  not  already  perfect.  This  covenant,  however,  is  already  perfect. 
The  covenantor  is  liable  at  law,  and  the  Court  is  not  called  upon  to  do  any  act  to  per- 
fect it.  One  question  made  in  argument  has  been,  whether  there  can  be  a  trust  of  a 
covenant  the  benefit  of  which  shall  belong  to  a  third  party  ;  but  I  cannot  think  there 
is  any  difficulty  in  that.  Suppose,  in  the  case  of  a  personal  covenant  to  pay  a  certain 
annual  sura  for  the  benefit  of  a  third  person,  the  trustee  were  to  bring  an  action 
against  the  covenantor;  would  he  be  afterwards  allowed  to  say  he  was  not  a  trustee  1 
If  he  cannot  do  so  after  once  acknowledging  the  trust,  then  there  is  a  case  in  which 
there  is  a  trust  of  a  covenant  for  another.  In  the  case  of  Clough  v.  Lambert,  10  Sim. 
174,  the  question  arose ;  the  point  does  not  appear  to  have  been  taken  during  the  argu- 
ment, but  the  Vice  Chancellor  of  England  was  of  opinion  that  the  covenant  bound  the 
party;  that  the  cestui  que  trust  was  entitled  to  the  benefit  of  it;  and  that  the  mere 
intervention  of  a  trustee  made  no  difference."  —  Ed. 


SECT.  IV.']  FOGG  V.   MIDDLETON.  67 

teer  cestui  que  trust  as  to  one  who  is  not  a  volunteer.  If  that  were 
the  law,  no  executor  would  be  accountable  to  collateral  legatees. 

So  that,  without  going  further  than  Mr,  H.  Middleton,  the  plaintiffs 
have  a  right  to  come  here  to  compel  him  to  perform  his  trusts. 

But  if  he  is  liable,  it  results  that  he  may  be  compelled  also  to  sur- 
render to  his  cestui  que  trusts  all  the  legal  remedies  he  possesses. 
And  this  puts  the  plaintiffs  in  possession  of  the  bond,  to  all  intents, 
as  if  it  had  been  drawn  to  them  as  obligee,  or  assigned  to  them. 

If  it  had  been  drawn  to  the  plaintiffs  by  Mr.  John  Izard  Middleton, 
or  assigned  to  them  by  Mr.  Henry  Middleton,  will  it  be  pretended  that 
the  plaintiffs  could  not  recover  from  the  obligor,  even  if  it  was  given 
on  no  consideration?  If  it  had  been  given  on  a  consideration,  which 
failed,  that  would  be  a  good  defence.  But  the  original  want  of 
consideration  would  be  none. 

If  the  Court,  in  this  case,  travels  beyond  the  case  of  the  trustee  and 
cestici  que  trusts,  and  takes  cognizance  of  the  liabilities  of  the  obligor, 
it  is  at  the  instance  of  the  defendants,  who  insisted  on  his  being  made 
a  party.  Being  here  at  his  own  instance,  the  Court  wiU,  to  prcA-ent 
circuity  of  action,  decree  again.st  him  what  he  would  have  been  liable 
to  pay  the  defaulting  trustee,  or  what  the  plaintiffs  could  recover  if 
the  bond  had  been  assigned  to  them.-^ 

The  motion  is  dismissed. 

Chancellors  Johnson  and  Harper  concurred. 

Chancellor  De  Saussuke  absent,  from  indisposition. 

*  The  right  of  a  cestui  que  trust  of  an  obh'gation  to  have  a  subpoena  against  his 
trustee,  who  refu.sed  to  enforce  the  claim,  has  been  recognized  from  very  early  times : 
(1391 )  .3  Hot.  Pari.  297  ;  Y.  B.  2  Ed.  I V^  2-6 ;  Ko.se  v.  Clarke,  1  Y.  &  C  C.  C.  534,  548 ; 
Re  Uruguay  Co.,  11  Ch.  T).  372  (semble);  Thompson  v.  H.  R.  Co.,  6  Wall.  134;  N.  Y. 
Co.  V.  .Memphis  Co.,  107  U.  S.  205;  Morgan  v.  Kansas  Co.,  21  Blatchf.  134;  Doggett 
V.  Hart,  5  Fla.  215  ;  Mason  v.  Mason,  33  Ga.  435 ;  Forrest  i;.  O'Donuell,  42  Mich.  &56  ; 
Western  Co.  v.  Nolan,  48  N.  Y.  513 ;  Wetmore  v.  Porter,  92  N.  Y.  7G  {semble) ;  Crosbj 
V.  Bowery  Bank,  50  N.  Y.  Sup'r  Ct.  453 ;  Pha'be  v.  Black,  70  N.  Ca.  379. 

But  for  some  time  the  cestui  f/ue  trust  could  proceed  only  against  his  trustee: 
Dhcgetoft  V.  London  Co.,  Mosely,  83,  affirmed  in  4  Bro.  P.  C.  (Toml.  ed.)  436;  Fall  v. 
Chaml)ers,  Mosely,  193  ;  Moticux  v.  London  Co.,  1  Atk.  .")45,  .547. 

Now,  however,  the  beneficiary  i.s  allowed,  on  tlie  principle  of  avoiding  multiplicity 
of  a<-tionB,  to  join  the  obligor  as  a  defendant  with  the  recu.sant  trustee:  Fletcher  v. 
Fletcher,  4  Hare,  07 ;  Gamly  v.  Camly,  30  Ch.  Div.  57  ;  Owens  v.  Ohio  Co.,  20  Fed. 
Bep.  10;  Wright  v.  Mm:k,  95  Iml.  3;J2  ;  Halo  v.  Nashua  Co.,  60  N.  H.  333  ;  Do  Kay 
V.  Hackensack  Co.,  38  N.  J.  Eq.  158  ;  Davies  v.  N.  Y.  Co.,  41  Hun,  492.  Sec,  further, 
the  analogous  cases  of  procceiiings  in  eijuity  against  an  executor  and  a  debtor  of  tho 
testator:  Barker  i'.  Birch,  1  DeG.  &  Sm.  376  ;  or  against  a  guardian  and  a  debtor  to 
the  ward's  eatate :  Mesmer  v.  Jeukiua,  61  Cal.  151 ;  Frost  v.  Libby,  79  Me.  56.  —  Ed. 


68  THOMASSEN  V.   VAN  WYNGAAEDEN.        [CHAP.  L 


THOMASSEN,  Guardian,  v.  VAN  WYNGAARDEN  et  al. 

In  the  Supkeme  Court,  Iowa,  April  Term,  1885. 

[Reported  in  65  Iowa  Reports,  087.] 

Action  in  equity  to  foreclose  two  mortgages.  From  the  decree  the 
plaintiff  appeals. 

Bosquet  &  Earle,  for  appellants. 

Gesman  &  Proutt/  and  J.  M.  St.  John,  for  appellee. 

Servers,  J.  The  defendant  Wyngaarden  executed  tbe  following 
promissory  note : 

"  81,400.  Pella,  Iowa,  November  11,  1878. 

"  Six  years  after  date,  for  value  received,  I  promise  to  pay  to  Jantie 
Van  Wyngaarden,  in  trust  for  Gertruda  Geradina  Thomassen,  Jana 
Thomassen,  Wilhemina  Thomassen,  Johannes  Thomassen,  and  Jan 
Thomassen,  heirs  of  Maarke  Thomassen,  deceased,  or  order,  the  sum 
of  fourteen  hundred  dollars,  payable  at  the  First  National  Bank,  Pella, 
Iowa,  with  interest,  payable  annually,  at  the  rate  of  six  per  cent  per 
annum  from  date  until  paid.  Interest  when  due  to  become  principal 
and  draw  ten  per  cent,  and  an  attorney  fee  of  ten  per  cent  if  suit  is 
commenced  on  this  note." 

The  mortgages  were  given  to  Jantie  Van  Wyngaarden  in  trust  for 
the  beneficiaries  named  in  the  note.  It  was  pleaded  as  a  defence  that 
the  interest  up  to  that  time  had  been  paid.  The  mortgages  provided 
that,  in  the  event  the  interest  was  not  paid  as  therein  provided,  then 
the  whole  debt  became  due.  The  beneficiaries  are  grandchildren  of 
Jantie  Van  Wyngaarden,  and  are  minors,  and  the  plaintiff  is  their 
guardian.  This  suit  was  commenced  in  March,  1882,  and  the  court 
found  that  there  was  nothing  due  at  that  time. 

I.  Counsel  for  the  appellant  insist  that  there  is  no  sufficient  evi- 
dence showing  that  the  interest  due  on  the  note  up  to  January,  1882, 
has  been  paid. 

The  defendants  introduced  in  evidence  a  receipt  in  the  following 
words,  and  proved  that  it  was  executed  by  the  trustee  : 

"  Pella,  Iowa,  December  22,  1880. 
"  Received  of  Jan  Van  Wyngaarden  the  sum  of  one  hundred  and 
forty-seven  dollars,  as  interest  on  a  certain  note,  secured  by  mortgage, 
to  me  given  by  the  said  Jan  Van  AV'yugaarden  in  trust  (for  the  bene- 
ficiaries above  named)  ;  this  being  in  full  up  to  January  1,  1882. 

"  Jantie  Van  Wyngaarden." 

Counsel  for  the  plaintiff  insist  that  the  receipt  is  signed  by  the  trus- 
tee as  an  individual,  and  therefore  the  beneficiaries  are  not  Imund 
thereby'.  But  we  think  it  fairly  appears  from  the  receipt  itself  that 
the  money  was  received  by  the  trustee  as  such.     It  was  paid  to  and 


SECT.  IT.]  THOMASSEN  V.   VAN   ■WYXGAARDEN.  69 

received  by  the  person  to  wbom  it  was  payable  by  the  terms  of  the 
note,  and  she  will  be  charged  as  having  received  it  in  her  capacity 
as  trustee. 

II.  Counsel  for  the  appellant  insist  that  the  trust  created  by  the  ex- 
ecution of  the  notes  and  mortgages  is  a  simple  or  dry  trust,  and  tliat 
the  trustee  in  such  a  trust  does  not  have  the  power  to  manage  and  dis- 
pose of  the  trust  estate,  and  therefore  the  beneficiaries  are  not  bound 
by  what  the  trustee  did.  A  simple  or  dr}^  trust  is  defined  to  be  one 
"  where  property  is  vested  in  one  person  in  trust  for  another,  and  the 
nature  of  the  trust,  not  being  prescribed  b\'  the  donor,  is  left  to  the 
construction  of  the  law."  Perry,  Trusts,  §  520.  "There  can  be  but 
few  of  these  dry  trusts  ;  for,  wlien  there  is  no  control,  and  no  duty  to 
be  performed  by  the  trustee,  it  becomes  a  simple  use,  which  the  statute 
of  uses  executes  in  the  cestui  que  trust,  and  he  thus  unites  both  the 
legal  and  beneficial  estate  in  himself." 

The  trust  under  consideration  is  materially  different ;  for  it  is  so 
far  declared  as  to  cast  on  the  trustee  a  duty  for  the  performance  of 
which  she  will  be  held  accountable.  It  is  made  the  duty  of  the  trustee 
to  receive  and  collect  the  interest  and  the  principal  when  it  becomes  due. 
The  legal  title  to  the  note  and  mortgages  is  vested  in  the  trustee.  It 
is  her  duty  to  preserve  and  protect  the  interest  of  the  beneficiaries. 
But,  in  the  absence  of  fraud  or  collusion,  the  trustee  could  satisfy  the 
mortgages  and  acknowledge  satisfaction  of  the  debt,  which  would  be 
landing  on  the  beneficiaries.  It  is  said  that  any  one  dealing  with  the 
trustee  must  see  that  money  paid  in  the  discharge  of  the  trust  was 
properly  appropriated ;  but  we  do  not  think  this  is  so,  for  the  simple 
reason  that  the  trustee  was  the  legal  owner  of  the  note,  and  authorized 
to  receive  payment  of  both  the  principal  and  interest.  An  adminis- 
trator in  one  sense  is  a  trustee  for  the  estate  he  represents  ;  and  yet 
he  is  the  legal  owner  of  the  notes  and  mortgages  belonging  thereto. 
A  person  making  him  a  payment  is  not  bound  to  see  that  the  money 
is  properly  accounted  for. 

The  rule,  it  seems  to  us,  should  bo  the  same  in  the  case  under  con- 
sideration. The  decree  of  the  Circuit  Court  vmst  be  affirmed} 

'  Savrc  I'.  Weil  (Alii.  ISOl),  10  S.  R.  .540  (semhle);  MiiniKlorlyn  v.  Augusta  Hank 
(r;a.  IHIM),  14  S.  K.  I{.  .^W;  Sherburne  v.  (Jofxhvin,  44  N.  H.  271",  Boone  v.  Hank,  84 
N.  Y.  8.3.  21  Ilun,  23.')  Acrnnt. 

Compare  C.  K.  Hank  v.  V.  N.  Bank,  118  N.  Y.  443.  — Ed. 


70  SCOTT  V.  JONES.  tCHAP.  L 


SECTION  V. 

A  Trust  distinguished  from  an  Executorship. 

JAMES   SCOTT   and   Others,   Appellants,  v.  SAMUEL   JONES, 
Surviving  Assignee,  Respondent. 

In  the  House  of  Lords,  Makcii  17,  24,  1835.  —  August  16,  1838. 

[Reported  in  4  Clark  Sr  Finnelly,  382.] 

Lord  Ltndhurst.^  In  a  case  of  Scott  v.  Jones,  which  was  heard  a 
considerable  time  back,  the  judgment  has,  from  accidental  causes,  been 
hitherto  postponed.  The  facts  of  the  case  are  extremely  simple,  and  the 
question  resolves  itself  into  a  mere  question  of  law.  It  appears  that, 
in  1815,  Messrs.  Evans  and  Jelf  carried  on  business  in  partnership,  as 
bankers,  at  Gloucester.  In  that  year  they  became  bankrupts,  and  their 
effects  were  assigned  under  their  commission  to  assignees  in  the  usual 
manner.  Mr.  R.  Donovan  had  a  running  account  with  the  bank,  and 
there  was  a  balance  against  him  at  the  time  of  the  bankruptcy  to  the 
amount  of  £262  4s.  3c?.  R.  Donovan  in  the  same  year  made  his  will, 
and  b}'  that  will  he  disposed  of  the  personal  estate  he  possessed  to 
trustees,  for  the  payment  of  his  debts  ;  and  he  also  devised  to  the  same 
trustees  what  he  considered  to  be  his  real  estate  at  Tibberton  Court ; 
and  he  directed  that,  in  the  event  of  the  personal  estate  not  being  suffi- 
cient to  discharge  the  debts,  a  sum  should  be  added  for  that  purpose,  to 
be  raised  by  the  sale  or  mortgage  of  the  real  estate  of  Tibberton.  He 
died  in  the  following  3'ear ;  one  of  the  trustees  alone  proved  the  will, 
the  other  renounced.  The  trustee  who  proved  the  will  administered 
part  of  the  assets,  and  soon  afterwards  died,  and  the  ultimate  adminis- 
tration de  bonis  nan  was  granted  to  one  of  the  appellants,  the  daughter 
of  R.  Donovan.  She  shortly  afterwards  put  an  advertisement  into  the 
Gloucester  paper,  directing  all  persons  who  either  had  or  conceived  them- 
selves to  have  any  claim  against  the  estate  of  her  father,  to  send  in  an 
account  of  those  claims  to  Messrs.  Bubb,  who  were  attorneys  carrying 
on  business  at  Cheltenham.  In  consequence  of  this  advertisement,  the 
assignees  of  the  bankrupt  sent  in  their  demand,  amounting  to  the  sum 
of  £260,  against  his  estate.  It  appears  that  no  notice  was  taken  of  this 
demand,  in  consequence  of  which  the  assignees  commenced  an  action 
against  Mrs.  Scott,  one  of  the  appellants,  and  her  husband.  To  this 
action  the  defendants  pleaded  the  Statute  of  Limitations,  and  there 
were  then  no  further  proceedings  taken  in  the  action.  There  cannot  be 
a  doubt  that  that  was  because  the  Statute  of  Limitations  was  a  sufficient 

^  The  statement  of  facts  and  arguments  of  counsel  are  omitted.  —  Ed. 


SECT,  v.]  SCOTT   V.    JONES.  71 

bar  to  the  action,  there  being  nothing  whatever  to  take  the  case  out  of 
the  statute,  this  advertisement  clearl}'  not  being  attended  with  that 
effect.  In  consequence  of  that,  the  present  bill  was  filed,  demanding  an 
application  of  the  trust  funds  in  payment  of  the  debts  of  the  testator. 
The  defendants,  in  their  answer  to  this  suit,  insist  on  the  Statute  of 
Limitations,  and  the  only  question  is,  whether  the  trust  was  of  such  a 
nature  as  to  prevent  the  setting  up  of  such  a  defence.  I  have  mentioned 
that  the  testator  considered  the  estate  at  Tibberton  to  be  real  estate. 
When  sold,  however,  it  turned  out  to  be  mere  leasehold,  and  to  form 
part  of  the  personalty.  Had  it  been  real  estate,  in  that  case  the  plaintiff 
would  have  been  entitled  to  recover  ;  but  though  part  of  the  personalt}', 
it  is  said  to  be  taken  subject  to  the  trust,  and  the  question  is,  whether 
a  trust  of  this  description  declared  of  the  personal  estate  prevents  the 
Statute  of  Limitations  being  set  up  by  way  of  defence,  and  I  am  clearly 
of  opinion  that  it  does  not,  because  it  does  not  at  all  varj-  tlie  legal 
liabilit}'  of  the  parties,  or  make  any  difference  with  respect  to  the  effect 
and  operation  of  the  statute  itself.  The  executors  take  the  estate  sub- 
ject to  the  claim  of  the  creditors  :  they  are,  in  point  of  law,  the  trustees 
for  the  creditors  ;  the  trust  is  a  legal  trust,  and  there  is  nothing  what- 
ever added  to  their  legal  liabilities  from  the  mere  circumstance  of  the 
testator  himself  declaring  in  express  terras  that  the  estate  shall  be  sub- 
ject to  the  payment  of  his  debts.  I  conceive,  therefore,  that  the  cir- 
cumstance of  there  being  an  exi)ress  trust  in  this  case  docs  not  make 
any  alteration  with  respect  to  the  question.  And  if  in  ordinary  circum- 
stances, as  to  personalty,  where  there  was  a  mere  legal  liability,  the 
existence  of  a  mere  legal  trust  would  not  have  been  an  answer  to  a  plea 
of  the  Statute  of  Limitations  ;  so  I  conceive  that  in  the  present  case  no 
alteration  can  take  place,  from  the  existence  of  an  express  trust,  and 
that  that  trust  cannot,  under  these  circumstances,  be  considered  as  an 
answer  to  the  statute.^  I  am  of  opinion,  thcrclbrc,  that  the  judgment  of 
the  Master  of  the  Rolls  was  tlie  correct  judgment,  and  that  the  judg- 
ment of  the  late  Lord  Chancellor,  reversing  it,  ought  to  be  set  aside. 
As,  however,  two  learned  judges  have  entertained  different  opinions  on 
tliis  point,  the  decree  of  the  Court  below  must  be  set  aside,  without 
costs.  Judgment  reversed  ivithoxit  costs. 

'  Freako  v.  Cranoffldt,  .3  M.  &  Cr.  409  ;  Evans  v.  Twcfidy,  1  Rcav.  r).5  ;  Cadbiiry  v. 
Smith.  9  Vji  .37  ;  /{e  llephurn,  14  Q.  H.  I).  3'.»4  ;  lie  Stoiihciis,  4.3  Cli.  1).  3<J  ;  Jliiics  v. 
Spruill.  2  I)cv.  &  U.  Eq.  9.3;  Man  v.  Warner,  4  Wliart.  4.').'j.  In  this  country  it  would 
Bccin  tliat  a  Kcnf-ral  cliarf^o  \>y  a  tf.slator  ujion  his  lands  fur  tlio  jjaynicMit  of  dclits  and 
Icgafic'H  would  not  affw.t  tho  running  of  tlio  Statute  of  Liniitati(jus,  fiince  llio  lands 
would  he  cliarKcahlo  in  any  event.  Carrington  v.  Manning,  1.3  Ala.  611  ;  Steele  v.  Steele, 
64  Ala.  438,  4:>9  ■  Starke  v.  Wilson,  Or.  Ala.  .STC  ;  Martin  v.  Gago,  9  N.  Y.  .398  ;  Trinity 
Church  V.  Watson,  50  I'a.  ."JIS  (c.\j)laining  Alf-.xandor  '•.  McMurry,  8  Watts,  :>04).  But 
Bee  Temjdeton  v.  Tompkins,  45  Miss.  424  ;  Abbay  v.  Hill,  04  Mis-s.  340.  —  Ed. 


72  IN  RE  SMITH.  [chap.  L. 


In  re  smith.     HENDERSON-ROE  v.   HITCHINS. 

In  the  Chancery  Division,  July  2,  1889. 

[Reported  in  42  Chancery  Division,  302.] 

Originating  Summons  to  determine  certain  questions  arising  upon 
the  will  of  Caroline  Smith,  who  died  on  tiie  14th  of  December,  1888. 

The  testatrix,  b}'  her  will,  dated  the  26th  of  July,  1888,  appointed 
the  plaintiff  to  be  her  executor,  and  directed  that  all  her  just  debts  and 
funeral  and  testanientaiy  expenses  should  be  paid  as  soon  as  conve- 
niently* might  be  after  her  decease.  After  bequeathing  some  small 
pecuniary  legacies,  and  five  legacies  of  £1,000  each,  the  will  continued : 
"  I  leave  the  residue  of  my  mone}^  (including  the  £750  settled  on 
my  brother,  Charles  H.  Smith,  at  his  death)  to  my  cousin  Dorothy 
Hitchins." 

At  the  time  of  the  death  of  the  testatrix  her  personal  estate  consisted 
of  about  £1,200.     She  had  no  real  estate. 

The  summons  was  issued  by  the  executor,  as  plaintiff,  against  Doro- 
thy Hitchins  (who  was  an  infant),  and  two  sisters  of  the  testatrix,  as 
defendants.  It  asked  the  determination  (i?iter  alia)  of.  the  question 
whether  the  plaintiff  was  at  libert}'  to  pay  the  whole,  or  any  and  what 
part,  of  the  income  of  the  property  to  which  Dorothy  Hitchins  should 
be  held  to  be  entitled  under  the  will  to  her  father,  under  the  provisions 
of  section  43  of  the  Conveyancing  Act,  1881,  wliich  permitted  a  trustee 
for  an  infant  to  pa}'  the  income  of  the  trust  property,  at  his  discretion, 
to  the  infant's  parent,  or  otherwise  apply  it  for  the  infant's  maintenance, 
education,  or  benefit.* 

C.  JSroicne,  for  the  infant. 

G.  Curtis  Price^  for  the  sisters  of  the  testatrix. 

North,  J.  I  think  the  point  is  clear.  The  testatrix,  after  directing 
the  payment  of  her  debts  and  finieral  and  testamentary  expenses,  and 
bequeathing  some  pecuniar}-  legacies,  left  "  the  residue  of  her  money" 
to  an  infant.  She  also  bequeathed  some  specific  legacies.  It  is  the 
dut}'  of  the  executor  to  clear  the  estate,  — -  to  pa}'  the  debts,  funeral 
and  testamentary  expenses,  and  the  pecuniary  legacies,  and  to  hand 
over  the  assets  specifically  bequeathed  to  the  specific  legatees.  "When 
all  this  has  been  done  a  balance  will  be  left  in  the  executor's  hands,  and 
I  think  it  is  plain  that  this  balance  will  be  held  b}'  him  in  trust  for  the 
infant  within  the  meaning  of  section  43.  In  Phillipo  v.  Munnings^  the 
question  arose,  whether  a  suit  against  the  executor  of  an  executor  to 
recover  a  sum  of  mone}'  which  the  original  testator  had  bequeathed  to 
his  executor  upon  certain  trusts,  the  ultimate  trust  being  for  John 

1  The  statement  of  the  case  has  been  abridared.  — Ed. 


2  2  My.  &  Cr.  309. 


o^ 


SECT,  v.]  IN  RE   SMITH.  73 

Buscall,  who  was  dead  intestate,  the  plaintiffs  being  his  next  of  kin, 
was  "  a  suit  to  recover  a  legacy"  within  the  meaning  of  the  Statute  of 
Limitations,  3  &  4  Will.  IV.  c.  27.  The  defendant's  testator  had  set 
apart  the  sum  of  £400  to  answer  the  legac}".  Lord  Cottenham  held 
that  the  suit  was  not  a  suit  to  recover  a  legacy.  He  said :  ^  ''The 
whole  fallacy  of  the  defendant's  argument  consists  in  treating  this  suit 
as  a  suit  for  a  legacy.  Now,  the  fund  ceased  to  bear  the  character  of  a  i 
legacy,  as  soon  as  it  assumed  the  character  of  a  trust  fund.  Suppose  ^ 
the  fund  had  been  given  by  the  will  to  anybod\-  else  as  a  trustee,  and 
not  to  the  executor ;  it  would  then  be  clearly  the  case  of  a  breach  of 
trust." 

Again,  in  Dix  v.  Burford  -  executors  had  assented  to  a  specific  be- 
quest of  £400  (which  was  secured  by  a  conditional  surrender  of  copy- 
holds which  had  become  absolute)  to  tl),em  upon  certain  trusts.  The 
executors  did  not  procure  themselves  to  be  admitted,  and  one  of  them 
alone  received  the  money  and  released  the  estate  and  misapplied  the 
money.  It  was  held  that  the  co-executor  had  become  a  trustee,  and 
was  liable  to  make  good  the  money.  Lord  RomiJly,  M.  R.,  said:* 
"  The  first  question  here  is,  whether  the  relation  of  trustee  and  cestui 
que  trust  existed?  There  is  a  specific  legacy  of  tliis  mortgage  for 
£400,  and  a  bequest  of  the  residue  to  the  executors.  The  moment  the 
executors  assented  to  the  bequest,  \X\e\  became  trustees  for  iXmxv  cestuis 
que  trustent,  the  £400  then  ceased  to  be  part  of  the  testator's  assets, 
and  it  became  a  trust  fund  for  the  benefit  of  the  plaintiff  for  life,  and 
afterwards  for  his  children,  and  the  executors  became  mere  trustees  for 
them  of  that  fund." 

In  my  opinion,  it  makes  no  diflference  for  this  purpose  whether  a 
pecuniar}'  legacy  payable  oiit  of  the  estate  is  given  to  an  infant,  or  the 
residue  of  the  testator's  estate  is  given  to  an  infant,  so  soon  as  tliat 
residue  is  ascertained.  I  might  refer  to  man}-  other  cases,  but  I  think 
those  two  are  suflleient  to  show  what  the  clearly  settled  rule  of  law  is. 
In  my  opinion,  tho  residue  of  the  money  in  the  hands  of  the  executor, 
after  satisfying  all  the  previous  trusts  of  the  will,  is  propert}'  held  bv 
the  executor  in  trust  for  tho  infant,  within  the  meaning  of  section  43.* 

'  2  My.  &  Cr.  .'514.  2  jg  w^^^y,  409.  3  19  j^pav.  412. 

*  A  hpf|ni'flt  to  an  oxocntor  upon  trust  to  invent  and  pay  tlic  income  to  anotlior  is 
not  a  Icpary  within  9  &  10  Vict.  r.  O.*),  h.  fi.'i,  givinpj  tlio  rf)unty  court.s  juri.sdictiou 
cncr  Ifpacien.  Hpwstf>ri  v.  IMiiliipH,  1 1  Kx.  fi'.lD.  AMorson,  R.  saiil  in  this  case,  p.  702  : 
"  It  i8  no  part  of  the  onlinary  duly  of  an  executor  to  do  wliat  tiiis  trustee  is  reciuircd 
to  do ;  for,  inasmuch  a.s  the  restuis  r/up  truxl  are  infants,  he  is  to  invest  the  money 
diirinf^  their  minority.  .  .  .  'i'li.ii  in  no  jiarl  of  the  fluty  of  au  executor;  and  tliore- 
forc  this  is  the  case  of  a  real  trust." 

T'onverBcly,  a  lepary  is  not  heyond  tho  reach  of  a  creditor's  hill  as  a   "trust"    ' 
proceetlinp  from  a  third  person.     Racon  r.  Ronham.  27  N.  .1.  Kip  2(>!t.  » 

It  is  not  always  ejLsy  to  determint!  whether,  in  a  ;;iven  ca.-'e,  an  executor  hiifl  ceased 
to  hold  a  fund  as  execntor,  and  asstimcd  the  attitude  of  a  trustee.  Hut  tho  legal  dif- 
ference hctween  the  two  relntions  is  clearly  defincfl  and  Ilis  heen  frefiuentlv  illnst rated, 
E.  g.,  if  the  execntur  has  hecome  a  frnst.ee,  (I)  the  heneficiary  has  no  further  claim 
npoD  the  general  assets  of  tho  deceased.     He  must  look  solely  to  the  specific  rea  ap* 


74  DRAKE  V.   PRICE.  [CIIAP.  L 


DRAKE   AND  WIFE   v.  PRICE,  Survivor  of  ROBINSON. 

In  the  Court  of  Appeals,  New  York,  September,  1851. 

[Reiwrted  in  5  New  York  Reports,  430.] 

Foot,  J,'  delivered  the  opinion  of  the  Court. 

The  material  question  in  this  cause  is,  wliether  the  appellant  and 
his  deceased  co-executor  held  the  funds  as  executors  or  as  trustees,  or, 
in  other  words,  whether,  as  executors,  they  had  paid  it  over  to  them- 
selves, as  trustees,  and  held  it  in  the  latter  character. 

propriated  to  the  trust :  Wilmott  v.  Jenkins,  1  Beav.  401  (sevihle)  ;  Brougham  v.  Pou. 
lett,  19  Beav.  119;  Brown  c.  Kelsey,  2  Cash  243,  248  ,  Hubbard  v.  Lloyd,  6  Cush.  522 ; 
Miller  v.  Congdon,  14  Gray,  114  [semble).  (2)  The  beneficiary's  remedy  is  in  equity, 
instead  of  the  Probate  Court :  Parsons  v.  Lyman,  32  Conn.  566,  5  Blatciif.  170,  s.  c.  ; 
Worden  v.  Kerr  (Michigan,  1892),  51  N.  W.  R.  937;  Poole  v.  Brown,  12  S.  Ca.  556. 
(3)  The  beneficiary  has  a  claim,  in  case  of  failure  to  invest,  of  what  might  have  been 
realized  :  Buvchell  v.  Bradford,  6  Mad.  235  (semble).  (4)  If  there  are  several  execu- 
tors and  trustees,  one  trustee  cannot  act  for  all,  where  one  executor  might  so  act : 
Ham  I'.  Ham,  58  N.  H.  70.  (5)  One  trustee  may  be  liable  for  the  default  of  a  co- 
trustee when  an  executor  would  not  have  to  answer  for  default  of  a  co-executor ;  Dix 
I"  r.  Burford,  19  Beav.  409.  (6)  Beneficiary,  as  phiintiff,  may  be  a  witness  in  a  proceed- 
'»  ing  against  the  trustee,  when  he  could  not  testify  in  a  proceeding  against  the  executor 
as  the  representative  of  tlie  deceased:  Myers  v.  Keinstein,  67  Cal.  89.  (7)  Statute  of 
Limitations  wliich  bars  a  claim  for  a  legacy  has  no  bearing  on  the  claim  against  tlie 
trustee  :  Phillipo  v.  Munnings,  2  M.  &  Or.  309  ;  Tyson  v.  Jaclison,  30  Beav.  384 ;  Re 
Rowe,  58  L.  J.  Ch.  703  ;  Re  Davis,  '91,  3  Ch.  119  {semble) ;  Re  Swain,  '91,  3  Ch.  233  ; 
Hartford  v.  Power,  2  Ir  R.  Eq.  204  ;  O'Reilly  v.  Walsh,  6  Ir.  R.  E(i.  555.  (8)  Tho 
beneficiary,  as  in  other  cases  of  trusts,  may,  to  prevent  a  failure  of  the  trust,  secure 
the  appointment  of  a  new  trustee  :  Ex  parte  Dover,  5  Sim.  500 ;  Ex  parte  Wilkinsou, 
3  Mont.  &  A.  145.  (9)  It  .seems  clear  that  after  the  executor  has  become  a  trustee 
the  sureties  on  the  executor's  bond  cannot  be  charged  for  subsequent  acts  or  omissions 
of  the  trustee  :  Perkins  v.  Lewis,  41  Ala.  662  (semble) ;  Hinds  r.  Hinds,  85  Ind.  312; 
State  I".  Anthony,  30  Mo.  Ap.  625 ;  see  also  RufRn  v.  Harrison,  81  N.  Ca.  208.  But  ia 
some  jurisdictions,  notaVjly  in  Massachusetts,  the  sureties  on  the  executor's  bond  con- 
tinue liable,  even  though  the  regular  executorial  duties  are  all  performed,  until  tho 
executor  has  given  a  new  bond  as  trustee  :  Groton  v.  Ruggles,  17  Me.  137  (semble) ; 
Knight  V.  Loomis,  30  Me.  204  (semble) ;  Hall  v.  Gushing,  9  Pick.  395  ;  Ellis  v.  Ellis, 
12  Pick.  178,  181  ;  Towne  v.  Ammidown,  20  Pick.  535;  Ne'wcomb  v.  Williams,  9  Met. 
525  ;  Conkey  v.  Dickinson,  13  Met.  51  ;  Prior  v.  Talbot,  10  Cush.  1  ;  Miller  v.  Congdon, 
14  Gray,  114  ;  Richardson  v.  Morrill,  146  Mass.  76;  Felton  v.  Sawyer,  41  N.  H.  202 
(but  see  Leavitt  v.  Wooster,  14  X.  H.  550) ;  see  also  State  v.  Nichols,  10  Gill  &  J.  27 ; 
Almond  v.  Mason,  9  Grat.  700.  And  the  court  will  permit  a  new  bond  to  be  given 
only  when  special  reason.^  of  convenience  require  it.  The  application  of  the  executor 
to  substitute  a  bond  as  trustee  in  place  of  his  bond  as  executor  was  denied  in  Dorr  v. 
Waiuwriglit,  13  Pick.  328,  and  the  beneficiary  was  equally  unsuccessful  in  Holbrook 
V.  Harrington,  16  Gray,  102. 

In  other  jurisdictions  where  the  will  directed  an  investment  of  personalty  by  the 
executor,  the  sureties  on  the  executor's  bond  were  held  until  the  investment  was 
made.  Perkins  v.  Moore,  16  Ala.  9  ;  Cranson  v.  Wilson,  71  Mich.  356;  Cluff  v.  Day, 
124  N.  Y.  195  ;  Probate  Court  v.  Angell,  14  R.  I.  495.  —Ed. 

1  The  statement  of  facts  is  omitted,  being  sufficiently  indicated  in  the  opinion  of 
Paige,  J.  —  Ei). 


SECT.  Y.]  DRAKE  V.  PKICE.  75 

The  same  question  arose  on  a  similar  clause  in  a  will  in  the  case  of 
Valentine  v.  Valentine,^  and  Chancellor  AValworth  decided  that  the 
executors  held  the  funds  in  their  character  of  executors,  and  not  as 
trustees.  His  decision  appears  to  me  to  be  sound,  and  in  accordance 
■svith  the  provisions  of  the  will. 

Holding  the  fund,  and  receiving  and  paying  over  the  interest,  as 
executors,  the  appellant  and  his  co-executors  are  clearly  entitled  to 
only  one  per  cent  on  the  interest  received  and  paid. 

Paige,  J.  (dissenting).  The  office  of  ah  executor  is,  to  take  pos- 
session of  all  the  goods  and  cliattels,  and  other  assets  of  the  testator ; 
to  collect  the  outstanding  debts  and  sell  the  goods  and  chattels  so  far 
as  is  necessary  to  the  payment  of  the  debts  and  legacies  ;  to  pay  the 
debts  and  legacies,  and  under  the  order  of  the  surrogate  to  distribute 
the  surplus  to  the  widow  and  children  or  next  of  kin  of  the  deceased. 
These  acts  embrace  all  the  duties  which  appropriately  belong  to  the 
executorial  office.  If  any  other  duty  is  imposed  upon  the  executor, 
or  any  power  conferred,  not  appertaining  to  the  duties  above  enumer- 
ated, a  trust  or  trust  power  is  created,  and  the  executor  becomes  a 
trustee,  or  the  donee  of  a  trust  power.  And  such  powers  are  con- 
ferred, and  such  duties  imposed  upon  him,  not  as  incidents  to  his 
office  of  executor,  but  as  belonging  to  an  entirely  distinct  character,  — 
that  of  trustee.  And  in  all  such  cases  the  trust  and  executorship  are 
distinguishable  and  separate.  The  allegations  of  the  complaint  make 
out  a  case  of  trust.  The  defendants,  who  were  executors,  were 
directed  in  the  will  of  Gilbert  Hunter  to  invest  85,000,  as  the  share  of 
the  plaintiff,  Julia  Drake,  and  to  keep  the  same  invested  during  her 
life,  and  to  secure  the  interest  and  pay  the  same  over  annually  to  her 
(lurnig  her  life,  and  on  her  decease  to  divide  the  principal  among 
her  lawful  heirs.  The  defendants,  in  accordance  with  the  direction 
of  the  will,  invested  the  8^,000,  and  have  annually  paid  over  to  her 
the  interest,  deducting  therefrom  five  per  cent  commissions.  This  is 
not  like  the  case  of  Valentine  v.  Valentine.^  In  that  case  the  trust 
had  not  been  assumed  by  the  executors  by  an  investment  of  the  trust 
moneys,  and  the  conserjuent  separation  from  the  moneys  held  by  the 
defendants  in  their  character  of  executors.  Here  the  separation  was 
made.  The  share  of  the  plaintiff  Julia  Drake  was  taken  out  of  the 
mass  of  the  moneys  belonging  to  the  estate  of  the  testator,  and  in- 
vested as  a  separate  trust  fund  for  the  use  and  benefit  of  the  cestui 
que  trust.  The  payment  of  the  interest  annually  on  the  sum  so 
invested  to  the  plaintiff  Julia  Drake  is  efjuivalent  to  an  annual  ac- 
rounting  under  tlu;  ir»4th  rule  of  the  late  Court  of  Chancery,  and 
cntiLli'd  the  (kfendants  to  full  commissions  on  the  sum  so  received, 
as  interest,  and  paid  over  each  year,  without  regard  to  the  aggregate 
amount  of  the  previous  receipts  and  disljursements  by  them,  either  as 
executors  or  trustees.     (0  Paige,  21G;  7  Paige,  200;  2  Paige,  287; 

»  2  Barb.  Ch.  430. 


76  DRAKE   V.   PRICE.  [CHAP.  L 

0  Paige,  167.)  The  question  whether  the  defendants  wouki  be 
entitk'd  to  doable  commissions  for  receiving  and  paying  out  the 
principal  sum  of  So, 000,  does  not  arise  in  tliis  case.'  There  was 
no  actual  paj'ment  to  the  defendants  of  the  $5,000  as  trustees, 
the  money  being  already  in  their  hands  as  executors.  And  there 
will  be  no  actual  payment  out,  of  the  $5,000,  until  the  death  of  Julia 
Drake. 

The  Revised  Statutes  allow  executors  full  commissions  only  when 
moneys  are  both  received  and  paid  out.  And  under  the  late  Clian- 
cellor's  decision,  one  half  commissions  are  to  be  allowed  for  receiving 
and  one  half  for  paying  out.  (7  Paige,  267.)  No  commissions  can  be 
allowed  on  either  the  investment  or  the  reinvestment  of  trust  moneys, 
or  on  the  collection  of  moneys  so  invested  or  reinvested.  (7  Paige, 
265.) 

I  am  of  opinion  that  the  judgment  of  the  Supreme  Court  should  be 
reversed.  Judgment  affirmed.'^ 

1  Double  commissions  are  not  allowable  when  the  executor  is  also  trustee.  Val 
eutine  V.  Valentine,  2  Barb.  Ch.  430. 

■■'  Lansing  v.  Lansing,  45  Barb.  182  Accord.  Miller  v.  Congdon,  14  Gray,  114 
(semtle);  Westerfield  v.  Westerfield,  1  Bradf.  198  Contra.  — Ed. 


A  trustee  Is  to  be  distinguished  from  a  liquidator  of  a  company  :  Knowles  v. 
Scott,  '91,  1  Ch.  717 ;  —  and  from  a  guardian  :  Fox  v.  Minor,  32  Cal.  Ill,-  Anderson 
V.  Cameron.  Morris,  Iowa,  437,  Brooks  v.  Brooks,  11  Cush.  18.  —  Ed. 


SECT.  VL]  palmer  V.    SCHRIBB.  71 


SECTION  VL 

The  Language  necessary  to  the  Creation  of  a  Trust, 

PALMER  V.    SCHRIBB. 
In  Chancery,  before  Lord  Harcourt,  C,  ,  1713. 

[Reported  in  2  Equity  Cases  Abridged,  291,  placitum  9.] 

J.  S.  devises  the  residue  of  his  estate  to  his  wife,  and  desires  her 
to  give  all  her  estate  at  her  death  to  his  and  her  relations.  Qucere,  If 
this  does  amount  to  a  devise  on  a  trust  in  the  wife  for  all  the  estate 
which  the  husband  gave  her  by  his  will.  Harcourt,  C.  thought  these 
words  too  general  to  amount  to  a  devise  over  of  his  estate  after  the 
death  of  the  wife  ;  nor  can  it  be  taken  as  a  trust,  because  the  words  ex- 
tend to  all  the  estate  which  she  shall  be  possessed  of  at  the  time  of  her 
death,  which  the  husband  has  not  any  power  over,  and  therefore  it 
must  be  taken  over  as  a  recommendation,  and  not  as  a  devise  or  trust.^ 
But  if  the  testator  had  desired  his  wife  b}'  his  will  to  give  at  her  death 
all  the  estate  which  he  had  devised  to  her,  to  his  and  her  relations, 
there  the  estate  devised  to  her  ought  to  go  after  her  death  to  his  and 
her  relations,  according  to  the  statute  of  distributions. 

Bill  dismissed. 

1  Anon.,  2  Eq.  Ab.  291,  pi.  8  (Bequest  to  a  wife :  "  I  desire  and  request  my  said 
wife  to  give  all  her  estate  which  she  shall  have  at  the  time  of  her  death  to  her  and  my 
nearest  rehitioiis  equally  amonffst  them"). 

Kaih;  V.  Kade,  5  Mad.  1 1 8  ( IJequcst  to  a  wife,  "  requesting  that  she  will  at  her  death 
leave  £200  to  each  of  the  Miss  Nortons,  and  leave  the  remainder  of  her  property  to 
my  nfpliews  G.  and  W.  in  such  proportions  as  she  tliinks  jjroper"). 

Jxclimcrc  v.  Lavie,  2  M.  &  K.  107  (Ik(iu('st  to  two  eldest  daughters-  "If  they  die 
single,  of  course  they  will  leave  what  they  have  amongst  their  brothers  and  sisters,  or 
their  children  "). 

Hood  V  Oglander,  34  Beav.  513  (Devi.se  to  a  son  .  "  And  it  was  his  anxious  desire 
that  he  would  HO. 'icttle  and  devise  the  same,  .  .  .  anil  also  tiie  manors,  messuages,  lands, 
and  lu^reditaments  to  which  he  wan  or  might  become  entitled,  ,  .  .  that  the  same  .  .  . 
miglit  continue  in  the  name  of  Oglander  "). 

I'aniall  v.  rariiall,  'J  Cli.  1).  '.»<;  (IJequcst  of  overytliing  to  a  wife:  "It  is  my  wish 
that  whatever  property  my  wife  miglit  ^)ossess  at  her  death  bo  equally  divided  between 
my  children"). 

Hopkins  v.  Glunt,  111  Pa.  287  (Bcipiest  of  everything  to  a  wife  forever:  "My  fur- 
ther request  is  that  at  the  death  f>f  my  wife  she  will  so  divide  what  she  may  have 
among  our  daughters'  children,  share  and  share  alike  "). 


HARDING   V.   GLYN.  [CHAP.  I. 


HARDING  V.   GLYN. 
In  Chancery,  before  Hon.  John  Verney,  M.  R.,  June  7,  1739. 

[Reported  m  1  Allyns,  469.] 

Nicholas  Harding  in  1701  made  his  will,  and  thereby  gave  "to 
Elizabeth,  his  wife,  all  his  estate,  leases,  and  interest  in  his  house  in 
Hatton  Garden,  and  all  the  goods,  furniture,  and  chattels  therein  at 
the  time  of  his  death,  and  also  all  his  plate,  linen,  jewels,  and  other 
wearing-apparel,  but  did  desire  her  at  or  before  her  death  to  give  such 
leases,  house,  furniture,  goods  and  chattels,  plate  and  jewels,  unto  and 
amongst  such  of  his  own  relations  as  she  should  think  most  deserving 
and  approve  of,"  and  made  his  wife  executrix,  and  died  the  23d  of 
January,  1736,  without  issue. 

Elizabeth,  his  widow,  made  her  will  on  the  12th  of  June,  1737,  "  and 
therebj'  gave  all  her  estate,  right,  title,  and  interest  to  Henry  Swindell 
in  the  house  in  Hatton  Garden,  which  her  husband  had  bequeathed  to 
her  in  manner  aforesaid  ;  and  after  giving  several  legacies,  bequeathed 
the  residue  of  her  personal  estate  to  the  defendant  Glyn  and  two  other 
persons,  and  made  them  executors,"  and  soon  after  died,  witiiout  bav- 
ins; given  at  or  before  her  death  the  goods  in  the  said  house,  or  without 
having  disposed  of  any  of  her  husband's  jewels,  to  his  relations. 

The  plaintiffs  insisting  that  Elizabeth  Harding  had  no  property  in 
the  said  furniture  and  jewels  but  for  life,  with  a  limited  power  of  dis- 
posing of  the  same  to  her  husband's  relations,  which  she  has  not  done, 
brought  their  bill  in  order  that  they  might  be  distributed  amongst  his 
relations,  according  to  the  rule  of  distribution  of  intestates'  effects. 

Master  of  the  Rolls.  The  first  question  is,  If  this  is  vested  ab- 
solutely in  the  wife?  And  the  second.  If  it  is  to  be  considered  as 
undisposed  of,  after  her  death,  who  are  entitled  to  it? 

As  to  the  first,  it  is  clear  the  wife  was  intended  to  take  only  bene- 
ficially during  her  life  ;  there  are  no  technical  words  in  a  will,  but  the 
manifest  intent  of  the  testator  is  to  take  place,  and  the  words  "  will- 
ing" or  "desiring"  have  been  frequently  construed  to  amount  to  a 
trust,  Eacles  et  ux.  v.  England  et  ux. ;  *  and  the  only  doubt  arises  upon 
the  persons  who  are  to  take  after  her. 

Where  the  uncertainty  is  such  that  jt  is  impossible  for  the  court  to 
determine  what  persons  are  meant,  it  is  very  strong  for  the  court  to 
construe  it  only  as  a  recommendation  to  the  first  devisee,  and  make  it 
absolute  as  to  him  ;  but  here  the  word  "  relations  "  is  a  legal  description, 
and  this  is  a  devise  to  such  relations,  and  operates  as  a  trust  in  the 
wife,  by  way  of  power  of  naming  and  apportioning,  and  her  non-per- 
formance of  the  power  shall  not  make  the  devise  void,  but  the  power 

1  2  Vern.  466. 


SECT.  VI.]  HARLAXD   V.   TPJGG.  79 

shall  devolve  on  the  court ;  and  though  this  is  not  to  pass  b}'  virtue  of 
the  statute  of  distributions,  yet  that  is  a  good  rule  for  the  court  to  go 
b}-.  And  therefore  I  think  it  ought  to  be  divided  among  such  of  the 
relations  of  the  testator  Nicholas  Harding,  who  were  his  next  of  kin 
at  her  death  ;  and  do  order  that  so  much  of  the  said  household  goods 
in  Hatton  Garden,  and  other  personal  estate  of  the  said  testator 
Nicholas  Harding,  devised  b}-  his  will  to  the  said  Elizabeth  Harding, 
his  wife,  which  she  did  not  dispose  of  according  to  the  power  given  her 
thereby,  in  case  the  same  remains  in  specie,  or  the  value  thereof,  be 
delivered  to  the  next  of  kin  of  the  said  testator  Nicholas  Harding,  to 
be  divided  equally  amongst  thein,  to  take  place  from  the  time  of  the 
death  of  the  said  Elizabeth  Harding.^ 


HARLAND   v.   TRIGG. 
In  Chancery,  before  Lord  Thurlow,  C,  ,  1782. 

[Reported  in  1  Brown's  Chancery  Cases,  142.] 

Richard  IIarland,  being  seised  in  fee  of  the  manor  of  Sutton,  in 
the  county  of  York,  and  having  four  sons,  Philip,  John,  Richard  (the 
plaintiff),  and  Francis,  by  his  will  in  1747  devised  the  said  manor  (with 
other  lands)  to  Philip,  the  eldest  son,  for  life,  with  remainder  to  his 
first  and  other  sons  in  tail  male,  remainder  to  John,  the  second  son,  for 
life,  remainder  to  the  plaintiff  for  life,  remainder  to  Richard  lor  life,  with 
like  remainders  to  their  several  first  and  other  sons,  and  with  further 
remainders  over.  Richard,  the  father,  died  in  1750;  Phili|)  entered, 
and,  being  himself  also  possessed  of  leaseholil  estates  in  Sutton,  some 
for  lives  and  oliiers  for  years,  by  his  will,  made  in  the  year  17(!4,  gave 
his  leasehold  estate  for  lives  to  the  trustees  of  his  father's  will,  to  the 

1  In  Rrown  v  Tli^g'^.  8  Ve.s.,  Lord  EMon  said,  p.  570  •  "  It  is  jjcrfcctly  dear  tliat, 
where  there  is  a  mere  power  of  (li.spo.'<iii;(,  ami  that  pfiwcr  is  not  executed,  tliis  court 
cannot  execute  it.  It  is  equally  dear  that,  wherever  a  trust  is  created,  and  tlie  execu- 
tion of  that  trust  fails  \>y  the  death  of  the  trustee,  or  by  accident,  tliis  court  will 
execute  the  trust  One  question,  tlierefore,  is,  whether  J<din  Hrown  had  a  trust  to 
execute,  or  a  power,  and  a  mere  power.  But  there  are  not  only  a  mere  trust  and  a 
mere  power,  hut  there  is  also  known  to  this  court  a  power  which  tiie  jjarty  to  wiioni  it 
is  ;»iven  is  intrusted  and  required  to  execute  ,  and  with  regard  to  that  species  of  power 
the  court  cfmsidf-r  it  as  partakin;^  so  innch  of  tlie  nature  and  rpialitics  of  a  trust,  that 
if  the  fjcrsonwho  has  tint  duty  imposed  upon  him  does  not  discharf,'e  it,  the  court 
will,  to  a  certain  extent,  discharfre  the  duty  in  his  room  and  place.  Upon  that  prin- 
ciple, the  case  of  Harding;  r.  Glyn  proceeded  Hut  that  case  cannot  ho  j^ot  rid  of  by 
saying  it  is  a  singular  case,  and  that  it  is  dilhiult  to  reconcile  all  suh.sequeut  ct^os  with 
it ,  for  that  case  has  been  treated  aa  a  clear  authority,  probably  for  the  whole,  certainly 
by  my  own  exp'-rience  for  a  very  coiisidcrahlo  part,  of  the  time  elapsed  since  that 
judgment  wa»  pronounced."    ijee  tn/ra,  p.  000. 


so  IIARLAND   V.   TRIGG.  [CIIAP.  I. 

same  uses  to  which  the  hinds  devised  by  the  father's  will  were  limited, 
so  far  as  by  law  he  could  ;  and  then  followed  this  clause :  "  And  all 
other  my  leasehold  estates  in  the  parish  or  township  of  Sutton  I  give 
to  my  brother  John  Ilarland,  forever,  hoping  he  will  continue  them  in 
the  family."  Philip  died  in  1760.  John  entered  on  the  estate,  and 
died  in  1 772,  having  made  his  will  and  given  these  leasehold  estates  to 
his  widow,  whom  he  made  executrix,  and  who  since  married  the  de- 
fendant Trigg.  Richard,  the  third  son,  filed  this  bill,  insisting  the 
devise  in  Thilip's  will  subjected  these  estates  to  the  same  uses  as  those 
declared  by  the  father's  will ;  that  he  was,  therefore,  entitled  to  the  next 
estote  in  remainder,  and  praying  that  it  might  be  so  declared. 

31r.  Attorney  General,  3Ir.  3Iadocks,  3fr.  Ainc/e,  and  3£r.  Sinanger 
contended  that  John  had  an  estate  only  for  life.^ 

Lord  Chancellor.  I  have  no  doubt  but  a  requisition  made  with  a 
clear  object  will  amount  to  a  trust.  In  the  case  of  the  Duchess  of 
Buckingham's  will,  the  words  were  very  gentle,  but  had  a  distinct  ob- 
ject. But  where  the  words  are  not  clear  as  to  their  object,  they  cannot 
raise  a  trust.  Where  this  testator  had  a  leasehold  estate,  which  he 
meant  should  go  to  the  famil}',  he  has  used  apt  words  ;  therefore,  where 
he  has  not  used  such  words,  he  had  a  different  intent. 

Mr.  ^kinafield  and  3Ir.  Lloyd,  for  the  defendant. 

Lord  Chancellor.  I  think  every  will  ought  to  be  construed  accord- 
ing to  the  intent  of  the  testator,  where  it  can  be  collected.  In  order  to 
make  a  title,  the  plaintiff  states  that  the  father  had  settled  his  estates 
in  strict  settlement,  and  insists  that  I  shall  understand  this  devise  as 
giving  the  leasehold  estates  to  the  same  uses,  as  nearly  as  their  nature 
will  admit.  The  testator  gives  other  estates  to  trustees,  subject  to 
charges,  to  the  uses  in  that  settlement ;  he  therefore  understood  how 
to  make  his  estates  liable  to  those  uses,  and  intended  something  differ- 
ent here.  The  argument  is,  that  tliere  will  be  part  of  the  will  ineffect- 
ual, the  words,  "hoping  that  he  will  continue  them  in  the  ftimily  "  : 
the  answer  is,  that  the  words  are  precator}",  not  imperative.  Another 
argument  made  use  of  is,  that,  if  this  was  furniture,  the  devise  would 
carry  it :  but,  if  so,  it  would  be  on  this  ground,  that  he  recollected 
that  the  house  would  pass,  and  meant  the  furniture  should  re- 
main attached  to  it  under  all  its  limitations.  That  case  has  peculi- 
arities that  do  not  occur  here.  It  would  be  a  great  deal  too  much  to 
tie  this  up  as  a  strict  settlement.  I  had  a  doubt  whether  the  family 
could  not  claim  some  interest  in  the  subject,  but  when  I  come  to  con- 
sider, I  take  the  rule  of  law  to  be  this  :  that  two  things  must  concur  to 
constitute  these  devises,  — the  terms  and  the  object.  Hoping  is  in  con- 
tradistinction to  a  direct  devise ;  but  whenever  there  are  annexed  to 
such  words  precise  and  direct  objects,  the  law  has  collected  the  whole 
together,  and  held  the  words  sufficient  to  raise  a  trust :  but  then  the 
objects  must  be  distinct ;  where  there  is  a  choice,  it  must  be  in  the 

1  The  arguments  of  counsel  are  omitted.  —  Ed. 


SECT.  VI.]  WYNNE   V.   HAWKINS.  81 

power  of  the  devisee  to  dispose  of  it  either  wa}-.  If  he  had  sold  these 
leaseholds,  the  family  could  not  have  taken  them  from  the  vendee,  or 
if  he  had  given  them  to  any  one  part  of  the  family,  the  others  could 
have  no  remedy.  The  will  does  not  import  a  devise,  as  the  words  do 
not  clearh-  demonstrate  an  object.  I  am  therefore  of  opinion  that  the 
bill  must  be  dismissed. 


WYNNE  V.   HAWKINS. 
In  Chancery,  before  Lord  Thurlow,  C,  ,  1782. 

[Reported  in  1  Broum's  Chancery  Cases,  179.] 

The  plaintiflf  is  the  only  surviving  child  of  William  Wynne,  who 
was  the  only  son  of  John  Wynne.  John  Wynne,  by  will  dated  in 
1773,  gave  some  pecuniary  legacies,  and  then  went  on  as  follows: 
"And  as  I  have  lately  received  the  melancholy  account  of  the  death 
of  my  dear  son,  William  Wynne,  at  Bengal,  who  has  left  a  widow  and 
two  small  children,  and  I  am  informed  he  died  worth  five  times  the 
fortune  I  shall  leave  behind  me,  which  will  be  a  handsome  provision  ; 
and  as  I  shall  leave  behind  me,  over  and  above  the  said  legacies,  only 
sufticient  for  a  decent  maintenance  for  my  loving  wife,  Mary  Wjmne, 
by  whose  prudence  and  economy  I  have  saved  the  greatest  part  of  the 
fortune  I  shall  die  possessed  of,  not  doubting  but  that  she  will  dis- 
pose of  what  shall  be  left  at  her  death  to  our  two  grandchildren  ;  all 
the  rest  and  residue  of  my  personal  estate,  goods,  chattels,  moneys 
in  the  stocks,  plate,  jewels,  watches,  and  household  furniture,  and 
whatever  else  I  shall  be  possessed  of  at  the  time  of  my  decease,  I 
give  and  bequeath  to  my  loving  wife  Mary,  hereby  constituting  and 
aj^pointing  her  sole  executrix."  The  testator  died  in  September,  177."). 
The  wife  died  intestate,  July,  17H1,  and  this  bill  was  filed  by  the  sur- 
viving grandchild,  against  her  personal  representative,  for  an  account 
of,  and  to  bo  paid  such  part  of  the  estate  of  the  grandfather  as 
remained  undisposed  of  by  the  wife  during  her  life.  And  the  ques- 
tion was,  whether  these  words  made  an  absolute  devise  to  the  wife, 
©r  operated   as  a  remainder  over. 

Mr.  Mdnsfidd  and  Mr.  Ildrdnufi',  for  the  plaintiffs. 

Mr.  Attnrno;i  Gciirraly  f<>r  tlie  defendants.' 

Loud  Chancki.lok.  If  a  bill  had  l)een  filed  in  the  lifetime  of  the 
wife,  could  I  have  ordered  this  money  to  l)e  laid  out,  and  that  she 
should  receive  the  interest  for  her  life,  and  then  it  should  go  over? 
These  are  equivocal  words,  the  intent  of  which  is  to  be  gathered  from 
the  context.  If  the  intention  is  clear  what  was  to  be  given,  and  to 
whom,  I  sliotdd  think  the  words  "not  doubting"  would  be  strong 
enough.     Lut  where,  in  point  of  context,  it  is  uncertain  what  property 

^  The  arguments  of  counsel  are  omitted.  —  Ed. 

6 


82  WYNNE   V.   HAWKINS.  [CHAP.  I. 

was  to  be  given,  aud  to  whom,  the  words  are  not  sufTicicnt,  because  it 
is  doubtful  what  is  the  confidence  which  the  testator  has  reposed  ;  and, 
where  that  does  not  appear,  the  scale  leans  to  the  presumption  that 
he  meant  to  give  the  whole  to  the  first  taker.  Here  he  looked  upon 
the  provision  made  by  the  father  of  the  grandchildren  as  an  ample 
provision,  and  meant  this  fortune  to  pass  througli  the  pleasure  of  his 
wife,  leaving  it  to  her  to  use  what  she  pleased,  aud  consequently  to 
make  the  residue  such  as  she  chose.  If  lie  had  meant  imperatively, 
he  might  easily  have  used  such  words  as  would  have  effected  his 
iutention ;  but  it  is  impossible,  upon  any  rule  of  construction,  to 
make  these  words  an  order  upon  her  to  pass  the  property  over. 

JJill  dismissed.^ 

1  There  was  no  trust  in  the  following  cases.  Bland  v.  Bland,  2  Cox,  349 ;  Prec. 
Ch.  (ed.  Finch),  201  n. ;  2  Brown  C.  C.  43  (cited),  s.  c.  (Devise  to  a  husband  "ear- 
nestly recjuesting  that,  in  case  he  should  die  without  issue,  he  would  dispose  of  the 
estate,  or  of  so  much  thereof  as  he  should  die  seised  of,  so  that  the  estate  might  be 
enjoj-ed  by  her  daughters"). 

Pushman  v.  Filliker,  3  Ves.  Jr.  7  (Kesidue  to  wife,  "  desiring  her,  ...  on  her 
decease,  to  dispose  of  what  shall  be  left  among  my  children  in  such  manner  as  she 
shall  judge  most  proper  "). 

Wilson  V.  Major,  11  Ves.  205  (Kesidue  to  a  wife,  "upon  full  trust  and  confidence 
in  her  justice  and  equity  that  at  her  decease  she  would  make  a  proper  distribution  of 
what  effects  might  be  left,  in  money,  goods,  or  otherwise,  to  his  children  "). 

Cowman  v.  Harrison,  10  Hare,  234  (Bequest  of  income  to  a  wife,  "  particularly 
recommending,  desiring,  aud  directing  her  at  her  decease,  by  will  or  otherwise,  to 
divide  "  the  savings  therefrom  "  amongst  all  his  children  in  equal  shares  "). 

Mills  V.  Newberry,  112  111.  124  (Bequest  of  everything  to  A.,  "upon  the  express 
condition,  however,  that  she  devise,  by  will  to  be  executed  before  receiving  the  be- 
quest, so  much  thereof  as  shall  remain  undisposed  of  or  unspent  at  the  time  of  her 
decease  to  such  charitable  institution  in  Chicago  as  she  may  select"). 

Kona  V.  Meier,  47  Iowa,  572  (Bequest  of  everything  to  a  wife,  "with  full  power 
to  dispose  of  the  same.  ,  .  .  It  is  my  desire  that,  at  the  death  of  my  said  wife,  what- 
ever property  may  be  left  shall  thus  be  disposed  of,  and  request  of  my  wife  that  she 
will  and  provide  that  the  property  so  received  from  me  shall  be  devised  at  her 
death  as  follows."     Full  directions  follow). 

Williams  v.  Worthington,  49  Md.  572  (Residue  to  a  wife :  "  It  is  my  request 
and  desire  that  my  said  wife  should  by  last  will  and  testament  devise  and  bequeath 
all  of  said  property  at  her  death  remaining  in  her  possession  to  my  friend  B.  W.  and 
to  E.  W share  and  share  alike  "). 

Davis  V.  Mailey,  134  Mass.  588  (Residue  to  a  wife,  "to  her  sole  use,  benefit,  and 
disposal  .  .  . ;  and  whatever  may  be  left  of  my  estate,  if  any,  she  may  by  will  or  other- 
•wise  give  to  tho.se  of  my  heirs  that  she  may  think  best,  she  knowing  my  mind  upon 
that  subject.  I  am  willing  to  leave  the  matter  entirely  with  her,  feeling  satisfied  that 
she  will  do  as  I  have  reque.sted  her  to  in  the  matter"). 

In  the  ca.se  last  cited  the  court  said,  througli  Field,  J. :  "This  construction  renders 
it  unnecessary  to  determine  whether,  if  the  recommendation  were  intended  to  bind 
the  devi-see,  it  would  not  be  repugnant  to  the  devise  or  void  for  uncertainty." 

Second  Church  v.  DLsbrow,  52  Pa.  219  (Devise  to  a  wife  "to  enjoy  during  her 
lifetime,  or  dispo.se  of  the  same,  as  shall  seem  best  unto  her,  and  in  doing  so  she  .shall 
possess  all  the  rights  and  powers  that  I  of  right  could  do  if  I  were  living;  but  it  is 
my  wish  and  desire  that  my  said  wife  will  leave  at  the  time  of  her  death  the  prop- 
erty thus  left  to  her  by  me,  or  any  part  that  may  be  then  niiiiaining  in  her  hand,  for 
the  benefit  of  young  men  that  are  unable  to  educate  themselves,"  &c.). 

li  it  is  desired  to  give  to  one  person  the  full  enjoyment  of  certain  property, 


SECT.  VI.j  MAUM   V.   KEIGHLEY.  83 


MALIM  V.   KEIGHLEY. 

In  Chancery,  befoke  Sir  Rich.vrd  Pepper  Arden,  M.  R.,  June  7, 

1794. 

[Reported  in  2  Vesey,  Jr.,  333.] 

Thomas  Lowe,  by  his  will,  gave  £1,000  stock  in  tnist  to  pay  the 
interest  and  dividends  to  his  daughter  Anne  Malin  for  life,  for  her 
separate  use,  and  after  her  decease  the  principal  among  her  children  ; 
if  no  children,  to  sink  into  the  residue.  He  gave  £oOO  stock  to  Eliza- 
beth Thompson,  and  a  similar  sum  to  Sarah  Lowe,  two  other  daugh- 
ters ;  and  declared  trusts,  in  failure  of  which  those  sums  should  sink 
into  the  residue.  Then  he  gave  all  the  rest  and  residue  of  his  estate 
and  effects  whatsoever  and  wheresoever  in  trust,  as  to  one  third  for 
his  daughter  Lucy  Rawlin,  for  her  separate  use  for  life  ;  after  her 
decease  for  her  husband  for  life,  and  after  his  decease  for  the  children ; 
as  to  another  third,  for  Elizabeth  Tliompson,  for  her  separate  use  for 
life,  and  after  her  decease  for  her  children,  with  a  proviso  that,  if  she 
should  survive  her  husband,  and  marry  again,  she  might,  by  writing 
under  her  hand  and  seal,  executed  before  such  marriage  in  the  pres- 
ence of  two  witnesses,  direct  the  interest,  &c.  to  be  paid,  after  her 
decease,  to  such  husband  for  life ;  as  to  the  other  third,  for  Sarah 
Lowe  and  her  children  in  the  same  manner,  and  with  a  similar  power 
in  case  of  her  marriage ;  and  in  case  either  of  these  daughters  should 

together  with  the  power  of  alifiiation,  ami  at  the  same  time  to  secure  to  another  the 
benefit  of  so  much  of  the  property  as  is  not  disposed  of  by  the  first  douce,  this  desire 
may  be  accomplished  by  a  gift  to  the  one  person  for  life,  with  a  power  of  alienation, 
and  a  limitation  of  what  remains  at  his  death  to  the  other.  1  Jarman,  Wills  (4th  ed.), 
.302-304;  Henderson  v.  Cro.ss,  29  Heav.  210  (scmble)  ;  Constable  r.  Bull.  3  DeG.  & 
Sm.  411  ;  Re  Stringer's  Estate,  6  Ch.  I).  1  ;  Bibbens  v.  Porter,  10  Ch.  D.  733;  Re 
Thomson's  Estate,  13  Ch.  1).  144,  14  Ch.  Div.  203;  Re  Sheldon,  53  L.  T.  Rep.  .527; 
Espinassc  v.  Lulhngham,  3  Jo.  &  Lat.  180. '.>  Ir.  Eq.  12'J;  Smith  r.  licll,  0  Pet.  OH ; 
Funk  i;.  Eggleston,  92  111.  515;  John  v.  Bradlmry,  97  Ind.  203;  Hall  r.  Prelile,  08 
Me.  100;  Hall  v.  Otis,  71  .Me.  320  ;  Taft  r.  Taft,  130  Ma.s.s.  401  ;  Burleigh  v.  Clough, 
52  N.  II.  207;  Terrv  r.  Wiggin,  47  N.  Y.  512;  Cohen  v.  Cohen,  4  Kedf.  48;  Colt  ;- 
Hazard,  10  Hun,  189  ;  Crozier  v.  Bray,  120  N.  Y.  300  ;  Eeggott  v.  Eirtli,  132  N.  Y.  7 ; 
Ilambright's  App.,  2  Grant,  (I'a.)  320.  But  if  property  is  given  to  one  person  in  fee, 
i.  e.  aw  alisolutc  owner,  a  limitation  to  another  of  what  is  undispo.sed  of  at  the  death 
of  the  absolute  donee  is  voiij  for  repngnancy.  Kor  one  of  the  inciilents  of  absolute 
ownership  is  the  right  of  tlic  owner  to  suffer  his  property  to  descend  to  his  heir  or 
next  of  kin.  Atty.  Gen.  v.  Hall,  Fitzg.  314  ;  Sprange  v.  Barnard,  2  Bro.  C.  C.  585; 
Watkins  v.  Williams.  3  MacN.  &  G.  022;  Perry  v.  Mcrritt,  18  Eq.  152;  Hendrr.son  v. 
Cro.ss,  29  Beav.  210;  Shaw  v.  Ford.  7  Ch.  I).  009;  Howard  r.  ("arusi.  109  II.  S.  725; 
Case  V.  Dcwire,  00  Iowa,  442 ;  Halliday  r.  Stickler,  78  Iowa,  388  ;  Combs  v.  Comba,  67 
Md.  203;  Kelly  v.  Mrins,  135  Mas.s.  229;  Joslin  i-.  Bliodi's,  150  Mass.  301  ;  Weir  v. 
Mirh.  Co.,  44  Mich.  .500;  Hoxsey  i;.  Hoxsey,  37  N.  J.  Eq.  21  ;  McClellan  r.  Larcher, 
45  N.  J.  Cas.  17;  Campbell  v.  Beaumont,  91  N.  Y.  404;  Van  Horn  v.  Camj)bcll,  100 
N.  Y.  287  ;  .lauretche  v.  Proctor,  48  Pa.  400 ;  Cox  v.  Roger,  77  Pa.  100  ;  Colo  v.  Cole, 
79  Va.  251.  — Eu. 


84  MALIM   V.   KEIGIILEY.  [CITAP.  I. 

leave  no  ohiUlr'Mi.  the  share  of  such  (lau<j;hter  was  to  go  to  the  other 
two  daugl\tcrs  iu  the  same  manner,  as  their  respective  funds. 

"  And  in  case  the  whole  of  the  residue  of  my  personal  estate  shall 
become  vested  in  any  one  of  my  said  daughters,  then  I  do  give  and 
bequeath  the  same,  after  the  expiration  and  detormiiiation  of  the  sev- 
eral trusts  before  mentioned,  unto  such  surviving  daughter,  her  exec- 
utors and  administrators,  hereby  recommending  it  to  such  daughter 
to  dispose  of  the  same  after  her  own  death,  and  the  determination  of 
the  several  trusts  aforesaid,  unto  and  among  the  children  of  my  said 
daughter  Anne  Malim  and  my  nephew  John  Lowe,  of  Ferry  Bridge,  — 
desiring  that  his  reputed  daugliter  Amelia,  though  born  before  marriage, 
may  be  considered  as  one  of  his  children." 

The  whole  residue  became  vested  in  the  testator's  daughter  Sarah, 
who  married  Keighley  ;  and  the  question  was  whether,  after  her  decease 
without  issue  and  intestate,  a  trust  arose  for  the  children  of  Anne  Malim 
and  John  Lowe. 

Mr.  Lloyd,  for  the  children  of  Malim  and  Lowe,  plaintiffs. 

Mr.  Graham  and  Mr.  Abbott.,  for  the  defendant,^ 

Master  of  the  Rolls  (Sir  Richard  Pepper  Arden).  !■  think, 
with  Lord  Kenyon,  that  Cunliffe  v.  Cunliffe^  is  overruled;  that  he 
meant  to  say  he  differed  from  the  Lords  Commissioners,  and  that  he 
should  be  of  the  same  opinion  if  the  word  had  been  "  recommend." 
The  question  is,  whether  there  is  any  difference  between  "  recommend  " 
and  ''it  is  my  dying  request,"  —  whether  the  former  is  not  equal  to  the 
latter.  If  I  was  deciding  upon  the  weight  of  the  words,  I  rather  think 
"  recommend  "  is  stronger  than  "  desire."  A  great  stress  is  laid  upon 
the  word  "  dying,"  but  every  request  by  will  is  a  dying  request.  I 
will  lay  down  the  rule  as  broad  as  this :  wherever  any  person  gives 
property,  and  points  out  the  object,  the  property,  and  the  way  in 
which  it  shall  go,  that  does  create  a  trust,  unless  he  shows  clearly  that 
his  desire  expressed  is  to  be  controlled  by  the  party,  and  that  he  shall 
have  an  option  to  defeat  it.  The  word  "  recommend"  proves  desire, 
and  does  not  prove  discretion.  If  a  testator  shows  his  desire  that  a 
thing  shall  be  done,  unless  there  are  plain,  express  words  or  necessary 
implication  that  he  does  not  mean  to  take  away  the  discretion,  but  in- 
tends to  leave  it  to  be  defeated,  the  party  shall  be  considered  as  acting 
under  a  trust.  I  will  not  criticise  upon  the  words.  "Recommend" 
is  a  request,  and  more.  If  I  request  a  man  to  do  anything,  I  recom- 
mend it ;  and  vice  versa.  I  do  not  know  how  to  distinguish  them  ; 
therefore  declare  that  the  residue  of  the  personal  estate  upon  the 
death  of  Sarah  Keighley  without  issue,  and  intestate,  became  a  trust 
for  ihe  children  of  Anne  Malim  and  John  Lowe,  in  equal  shares  and 
proportions.^ 

*  The  arguments  of  counsel  are  omitted.  —  Ed. 

2  Amb.  686. 

8  AfSrmed  by  Lord  Loughborough,  2  Ves.  Jr.  529. 


SECT.  VI,]  LAMBE  V.   EAMES.  85 


LAMBE  u.  EAMES. 

In  Chancery,  before  Sir  "W.  M.  James  and  Sir  G.  Mellish,  L.  JJ.. 

March  9,  10,  1871. 

[Reported  in  Law  Reports,  6  Chancery  Appeals,  597.] 

John  Lambe,  b}'  bis  will,  gave  his  freehold  house  In  Cockspnr  Street, 
and  all  his  estate,  to  his  widow,  "to  be  at  her  disposal  in  any  way  she 
may  think  best  for  the  benefit  of  herself  and  famih\"  Tlie  testator 
died  in  1851,  leaving  the  widow  and  children.  One  of  his  sons  had  an 
illegitimate  son,  Henry  Lambe,  born  in  the  lifetime  of  the  testator,  but 
after  the  date  of  his  will. 

The  widow  died  in  1865,  having  b^-  her  will  devised  the  freehold 
house  in  Cockspur  Street  to  trustees  upon  trust  for  one  of  her  daughters, 
Elizabeth  Eames,  but  charged  with  an  annuity  for  Henry  Lambe. 

Henry  Lambe  filed  the  bill  in  this  suit  to  obtain  payment  of  the  an- 
nuity, which  was  disputed  by  Elizabeth  Eames  on  the  ground  that  the 
widow  had  only  a  power  of  disposition  amongst  the  famil}',  and  that 
Henry  Lambe,  being  illegitimate,  could  not  take  under  that  power. 

The  Vice  Chancellor  Malins  decided  that  the  devise  to  the  widow 
was  absolute,  and  that  she  had  therefore  power  to  devise  to  the  plain- 
tiff, as  reported.' 

The  defendant  Elizabeth  Eames  appealed. 

3fi\  Briatoice^  Q.  C,  and  Mr.  W.  Barber.,  for  the  appellant.^ 

3Ir.  Heath.,  for  another  defendant. 

Mr.  Cotton,  Q.  C,  and  Mr.  Warner,  for  the  plaintiff. 

Mr.  BrUtoioe,  in  reply. 

Silt  "W.  M.  Jamks,  L.  J.  In  this  case  my  opinion  is  that  the  decision 
of  the  Vice  Chancellor  is  perfectly  right.  If  this  will  had  to  be  con- 
strued irrespective  of  any  authority,  the  construction  would,  in  my 
opinion,  not  be  open  to  an}'  reasonable  doubt. 

It  is  the  will  of  a  man  who  was  in  business  as  a  shopkeeper,  and 
was,  when  he  made  his  will,  in  the  prime  of  life,  with  a  wife  and  young 
children,  and  it  is  to  this  effect.  [His  Lordship  then  read  the  will.] 
Now  the  question  is,  whether  those  words  create  any  trust  affecting  the 
property  ;  and  In  hearing  case  after  case  cited,  I  could  not  help  feeling 
that  the  oineious  kindness  of  the  Court  of  Chancery  in  interposing 
trusts  where  in  many  cases  the  father  of  i\m  family  never  meant  to 
create  trusts  must  liave  'been  a  very  cruel  kindness  indeed.  I  am 
satisfied  that  the  testator  in  this  case  would  hnve  been  shocked  to  think 
that  any  person  calling  himself  a  next  friend  could  file  a  bill  in  this 

>  10  Ef|.  2f)7. 

'  The  argiiitifnt  for  the  appellant,  together  with  tlio  concurring  opinion  of  Mcllislv 
L.  J.,  is  omitted.  —  Eu. 


86  LAMBE  V.    EAMES.  [CHAP.  I. 

court,  and,  uinlor  pretence  of  benefiting  the  cliiUlren,  have  taken  the 
administration  of  the  estate  from  the  wife.  I  am  satisfied  that  no  such 
trust  was  intended,  and  that  it  would  be  a  violation  of  the  clearest  and 
plainest  wishes  of  the  testator  if  we  decided  otherwise. 

The  testator  intended  his  wife  to  remain  head  of  the  famil}-,  and  to 
do  what  was  best  for  the  family.  If  he  had  said,  "  I  give  the  residue 
of  my  propert}'  to  my  three  sons,  each  to  take  his  share,  to  be  at  his  dis- 
position as  he  should  think  best,  for  the  benefit  of  him  and  his  famil}-," 
—  in  such  a  case  it  would  be  clear  that  the  testator  did  not  mean  to  tie 
the  property  up,  but  to  give  a  share  to  each  son,  believing  that  he 
would  do  the  best  for  his  family. 

But  it  is  said  that  we  are  bound  b}^  authority.  The  cases  cited  may, 
however,  be  distinguished.  In  this  will  there  is,  in  the  first  place,  an 
absolute  gift,  and  we  have  to  be  satisfied  that  this  gift  is  afterwards 
cut  down.  It  was  also  argued  that  in  some  cases,  as  in  Crockett  u. 
Crockett,^  the  Court  has  decided  there  was  some  interest  in  the  chil- 
dren, but  did  not  declare  what  it  was,  leaving  the  matter  to  be  dealt 
with  after  the  death  of  the  tenant  for  life. 

It  is  possible  that  in  this  case  there  ma}'  be  some  obligation  on  the 
widow  to  do  something  for  the  benefit  of  the  children  ;  but,  assuming 
that  there  is  such  an  obligation,  it  cannot  be  extended  to  mean  a  trust 
for  the  widow  for  her  life,  and  after  her  death  for  the  children,  in  such 
shares  as  she  may  think  fit  to  direct.  That  would  be  to  enlarge  the 
will  in  a  wa}'  for  which  there  is  no  foundation  ;  but  unless  the  will  has 
that  meaning,  what  trust  is  there?  I  cannot  agree  that  she  is  to  take 
what  she  likes,  and  that  what  she  has  not  spent  is  to  go  at  her  death 
for  the  benefit  of  her  children.  In  Crockett  v.  Crocket,^  it  was  only 
decided  that  the  children  had  some  interest,  and  if  the  widow  fairly 
satisfied  that  obligation,  and  gave  them  some  interest,  nothing  more 
could  be  required. 

Then  this  case  was  said  to  be  like  Godfrey  v.  Godfrey.^  But  there 
the  Vice  Chancellor  decided  that  there  was  an  interest,  though  he  did 
not  define  what  that  interest  was.  [His  Lordship  then  read  and  com- 
mented on  the  judgment  in  Godfrey  v.  Godfrc}',  and  said  that  the  ratio 
decidendi  in  that  case  was  that  there  was  a  trust.]  But  it  is  impossible 
in  this  case  to  say  that  there  was  a  trust.  The  testator  clearly  intended 
her  to  deal  with  the  property  as  she  pleased,  and  contemplated  that 
she  might  risk  it  in  his  trade. 

The  other  cases  cited  arc  morel}'  illustrations  of  the  same  kind,  and 
do  not  enable  the  court  to  escape  from  the  difficulty  of  having  to  decide 
upon  the  meaning  of  the  word  "  family."  It  seems  to  me  impossible 
to  put  any  restriction  upon  the  meaning  of  that  word,  or  to  exclude 
any  person  who,  in  ordinary  parlance,  would  be  considered  within  the 
meaning.  The  word  might  include  sons-in-law,  or  daughters-in-law, 
and  many  others.     It  is  equally  uncertain  what  the  property  is,  because, 

12  Ph.  553.  '  2  2N.  R.  16;  11  W.  R.  554. 


SECT.  VI.]  LAMBE   V.    EAMES.  87 

if  she  could  spend  an}-  part  for  her  own  private  purposes,  then  there 
might  be  nothhig  left  for  the  trust. 

It  is  impossible  to  execute  such  a  trust  in  this  court,  and  if  the  case 
stood  alone  I  should  say  that  no  sufficient  trust  was  declared  b}'  the 
will.  But  if  there  be  any  such  obligation,  I  think  it  has  been  fairly 
discharged  b}'  the  way  in  which  she  has  made  her  will,  —  giving  part 
for  the  benefit  of  one  member  of  the  famih",  and  part  to  a  natural  son, 
■whom  she  might  reasonabh*  think  it  her  dut}'  to  benefit. 

It  appears  to  me  that  the  decision  of  the  Vice  Chancellor  is  right, 
and  that  the  appeal  must  be  dismissed. 

Sir  G.  Mellish,  L.  J.     I  am  of  the  same  opinion.^ 


^  In  the  following  cases  it  was  held  that  the  donee  took  beneficially,  subject  to  an 
obligation  in  favor  of  a  third  person  ;  — 

Hamley  v.  Gilbert,  Jac.  354  (Gift  to  A.  upon  trust  to  pay  certain  moneys  to  a  niece^ 
which  moneys  "  should  be  laid  out  aud  expended  by  her,  at  her  discretion,  for  or  to- 
wards the  education  of  her  son,  F.  G.  H.,  and  that  she  should  not  at  any  time  there- 
after be  liable  and  subject  to  account  to  her  said  son,  or  to  any  other  person  whatever, 
for,"  &c.). 

Foley  V.  Parry,  2  M.  &  K.  138;  5  Sim.  138,  s.  c.  (Residuary  bequest  to  testator's 
wife  for  life,  remainder  to  a  grand-nephew,  W.  W.  F. :  "  It  is  my  particular  wish  and 
request  that  my  dear  wife  and  W.  W.,  the  grandfather  of  the  said  W.  W.  F.,  will 
superintend  and  take  care  of  his  education,  so  as  to  fit  him  for  any  respectable  profes- 
sion or  employment "). 

Berkeley  v.  Swinburne,  6  Sim.  613  (Devise  to  trustees  in  trust  for  a  sister's  children, 
the  trusts  to  vest  upon  the  majority  or  marriage  of  each,  tlie  income  to  be  paid  to  the 
sister  (or  guardian  of  the  children)  prior  to  the  vesting,  "to  be  applied  in  and  towards 
the  maintenance  and  education  of  such  child  or  children  respectively,  or  otherwise  for 
their  respecti%-e  use  and  benefit  "). 

Camden  v.  Benson,  4  L.  J.  Ch.  N.  s.  256  (Bequest  of  income  to  testator's  wife  during 
her  life,  "  in  support  of  herself  and  three  children  "). 

Woods  V.  Wood.'',  1  M.  &  Cr.  401  (Devise  to  a  wife  for  the  payment  of  debts,  "all 
overflush  to  my  wife,  towards  her  support  and  her  family,  if  any  there  be  "). 

Iladow  V.  Iladow,  9  Sim.  438  (Devise  to  trustees  upon  trust  to  pay  to  testator's  sous 
at  twonty-one,  and  in  the  mean  time  to  pay  the  income  to  "  my  said  dear  wife,  J.  li., 
to  be  by  lier  ajijiliod,  or,  in  c:i.se  of  her  death,  to  be  applied  by  my  said  trustees  .  .  . 
for  and  toward.s  the  maintenance,  education,  aud  .advancement  in  life  of  my  said  sous 
...  in  such  maimer  as  she  or  they  shall  think  proper  "). 

Gilbert  v.  Bennett,  10  Sim.  371  (Devi.se  to  trustees  upon  trust  to  pay  the  income 
"unto  my  saiil  wife  for  the  education  and  .idvancing  in  life  of  any  ciiildren  she  m.iy 
have  borne  by  me,  .  .  .  and  after  her  dcatii  the  wiiolc  of  the  said  property  ...  to  bo 
divided  equally  .  .  .  among  my  saiil  children  "). 

I'age  V.  Way,  3  Bcav.  20  (Setticincnt  l>y  F.  J.,  n])on  trust  to  rercive  and  ])ay  incomo 
"unto  or  for  the  maintenance  and  8up|)ort  of  the  said  F.  J.,  his  wife,  and  ciiildren  ; 
or  otherwise,  if  the  trustees  should  so  think  proper,  permit  the  same  rents,  &c.  to  bo 
receiv(!il  by  tlio  saiil  F.  J.  fiuring  tlio  term  of  liis  nutiiral  life"). 

W<K»d  V.  l<i(  liard.'<on,  4  Bcav.  174  (I)evi.s(!  to  a  wife,  "  aiisolutely  and  at  her  own 
dLxpfL^al,  for  the  maintenance  of  herself  and  bringing  up  of  my  children"). 

Haike.s  v.  Wanl,  1  Ilaro,  445  (B<'(|ucsl  of  entire  personalty  to  a  wife,  "to  the  intent 
that  she  may  di.sjirt.se  of  the  same  for  tlie  benefit  of  herself  and  our  ciiildren,  in  sucli 
manner  as  she  shall  deem  most  advantageous  "). 

Leach  c.  Leach,  13  Sim.  304  (BciiucHt  of  leaseholds  to  J.  O.,  ujion  trust  to  pay  aa 
annuity  r(f  X200  to  testator's  daughter  K.,the  wife  of  T.  L.,  for  life,  afu-rwards  to  T.  L., 
"  to  enable  him  to  maintain  aud  educate  all  and  every  the  child  aud  children  of  the 


83  LAMBE   V.   EAMES.  [CIIAP.  L 

said  E.,  and  for  their  advancement  in  life  until  the  youngest  should  attaiu  twenty- 
ono  "  ;  and  in  i\ase  of  T.  L.'s  dciith,  u])on  trust  for  J.  O.,  "  to  apply  the  same  in  like 
manner  ;is  T.  L.  was  tliereby  directed  to  do  "). 

LouiTmore  v  Elcum,  2  Y.  &  C.  C.  C  3C3  (I)evise  to  A.  in  trust  to  permit  testator's 
wife  to  receive  the  income  "  for  lier  own  use  and  benefit,  and  for  tlio  maintonance  and 
education  of  my  dear  cliildreu  so  long  as  slie,  my  said  wife,  shall  continue  my  widow 
and  unmarried  "). 

Bowden  v.  Lainc^,  14  Sim.  113  (Bequest  of  income  of  certain  property  to  testator's 
wife  for  life,  "  for  the  maintenance  of  herself  and  children  "). 

Conolly  v.  Farrell,  8  Beav.  347  (Boqnest  to  testator's  wife  for  the  use  of  his  wife 
and  daughter,  subject  to  tiie  trust  "  that  his  wife  and  daughter  should  live  together, 
and  tliat  liis  wife  sliall  tai^e  charge  and  see  to  the  maintenance  and  support  of  his 
daughter  during  her  minority,  with  the  instruction  of  C"). 

Costabadic  v.  Costabadie,  6  Hare,  410. 

Crockett  v.  Crockett,  2  Phill  553  ("  All  and  every  part  of  my  property  shall 
be  at  the  disposal  of  my  most  true  and  lawful  wife,  C.  C,  for  herself  and  chil- 
dren "). 

Leigh  V.  Leigh,  12  Jur.  907  (Residuary  devise  upon  trust  to  pay  the  income  "unto 
my  said  wife,  so  long  as  she  sliall  continue  my  widow,  for  the  purpose  of  enabling  her 
to  bring  up,  educate,  and  maintain  my  children  "). 

Re  Harris,  7  Ex.  344  (Bequest  to  a  wife  "  for  the  maintenance  of  herself  and  our 
children  "). 

Smith  V.  Smith,  2  Jur.  n.  s.  967. 

Brown  v.  Paull,  1  Sim.  n.  s.  92  (Devise  to  trustees  upon  trust  for  his  children  when 
they  should  attain  twenty-one,  and  in  the  mean  time  "  to  pay  unto  my  said  wife,  or 
otherwise  apply  the  rents  and  proceeds  .  .  .  for  or  towards  their  respective  main- 
tenance, education,  and  advancement") 

Hart  V.  Tribe,  18  Beav.  215  ;  1  DeG.,  J.  &  S.  418,  s.  c.  (Bequest  of  £4,000  to  a  wife, 
"to  be  used  for  her  own  and  the  children's  benefit,  as  she  shall  in  her  judgment  and 
conscience  think  fit "). 

Carr  v.  Living,  28  Beav.  644  ,  33  Beav.  474,  s.  c.  (Bequest  of  income  to  a  wife  for 
life,  "  for  the  maintenance  and  support  of  herself,  and  maintenance,  education,  clothing, 
and  supjwrt  of  such  child  or  children,"  &c.). 

Scott  V.  Key,  35  Beav.  291  (Bequest  to  a  wife,  "to  be  at  her  sole  and  entire  dis- 
posal for  the  maintenance  of  herself  and  such  child  or  children  as  he  might  have 
by  her"). 

Armstrong  v.  Armstrong,  7  Eq.  418  (Bequest  of  everything  to  a  wife,  "for  the 
benefit  of  herself  and  children"). 

Dixon  V.  Dixon,  W.  N.  (1876),  225  (Testator  gave  annuities  to  his  son  and  daugh- 
ters, "  for  their  own  use  and  support  of  tlieir  children  "). 

Baty  V.  Miller,  1  Up.  Can.,  E.  &  A.  218  (Gift  of  everything  to  a  daughter:  "I 
wish  and  desire  that  my  daughter  shall  make  a  competent  provision  for  my  niece, 
Mrs.  B."). 

Colton  V.  Colton,  127  U.  S.  300,  reversing  s.c.,21  Fed.  Rep.  594  ("To  my  said  wife, 
E.  M.  C,  all  my  estate.  ...  I  recommend  to  her  the  care  and  protection  of  my  mother 
and  sister,  and  recjuest  her  to  make  such  gift  and  provision  for  tliem  as  in  her  judgment 
will  he  best"). 

Ex  parte  Dickson,  64  Ala.  188  (To  my  wife  "  for  her  support  .  .  .  and  the  support 
of  my  children  "). 

Cockrill  V.  Arm.strong,  31  Ark.  580  (Beque.st  to  sons,  "having  full  confidence  in  my 
sous  aforesaid,  and  in  their  disposition  to  deal  fairly,  justly,  and  liberally,  I  leave  it  to 
them  to  make  proper  and  suitable  provision  for  their  sisters  "). 

Bristol  V.  Austin,  40  Conn.  438  ("  I  give  ail  my  estate  ...  to  my  beloved  wife,  L., 
for  her  life,  to  be  used  in  the  support  of  herself  and  my  children,"  with  power  to 
sell,  &c.). 

Hunter  v.  Stemhridge,  12  Ga.  192  (Devise  to  a  son  and  bequest  of  negro  woman  to 
a  wife,  "and  I  allow  my  son  H.  to  give  her  a  support  off  my  plantation  during  her 
lifetime  "J. 


SECT.  VI.]  LAMBE   V.   EAMES.  89 

Heard  v.  StiU,  26  Ga.  302. 

Major  V.  Herudon,  78  Ky.  12.3  (To  my  wife,  "  which  I  desire  she  should  manage  for 
the  benefit  of  herself  and  children  "). 

Cole  V.  Littlefield,  35  Me.  439  (Bequest  of  income  to  a  wife,  "to  be  appropriated 
to  the  use  of  my  beloved  wife  for  her  own  and  our  children's  support,"  &c.). 

Tolsou  V.  Tolsou,  10  Gill  &  J  159  (Devise  to  sons :  "  I  request  my  seven  sons  above 
named  to  take  care  of  their  brother  J.  T.,"  &c.). 

Chase  v.  Chase,  2  All.  101  (Devise  upon  trust  to  pay  the  income  to  a  son,  "for  the 
support  of  himself  and  his  family  and  the  education  of  his  children  "). 

Andrews  v.  Cape  Ann  Bank,  3  All.  313. 

Warner  v.  Bates,  98  Mass.  274  (Bequest  of  income  to  husband  for  life,  "in  the  full 
confidence  tliat  he  will,  as  he  has  heretofore  done,  continue  to  give  and  afford  my 
children  such  protection,  comfort,  and  support  as  they  or  either  of  them  may  stand  in 
need  of"). 

Lucas  V.  Lockhart,  18  Miss.  4CG  (Devise  to  a  wife  during  widowhood  :  "  During  .  .  . 
widowhood  she  is  to  have  the  entire  use,  profits,  and  control  of  my  estate,  and  to  her 
discretion  do  I  intrust  the  education  and  maintenance  of  my  children  during  that  time." 
After  the  wife's  death  the  children  were  to  be  supported  out  of  annual  profits  of  testa- 
tor's estate). 

Pratt  V.  Miller,  23  Neb.  496  .(Bequest  to  a  wife  and  her  heirs,  "for  the  maintenance 
and  support  of  my  said  wife  and  my  infant  child,  C.  D.  P."). 

Erickson  v.  Willard,  1  N.  H.  217  (Devise  to  J.  W. :  "  I  desire  that  the  said  J.  W. 
shoukl,  at  his  discretion,  ap])ro])riate  a  part  of  the  income  of  my  estate  aforesaid,  not 
exceeding  S50  a  year,  to  the  support  of  M.  E."). 

Ward  V.  Peloubet,  2  Stockt.  304. 

Biilar  v.  Lowndes,  2  Dem.  590  (Gift  to  a  wife  for  life,  "for  the  support  of  herself 
and  her  ciiildren  "). 

Parsons  u.  Best,  1  Th.  &  C.  211. 

Clark  IV  Leupp,  88  X.  Y.  228,  revising  s.  c,  56  How.  Pr.  519  {"  To  my  wife,  C,  all 
of  my  property,  ...  to  take  charge  of  my  proijerty  after  my  death,  and  retain  or 
dispose  of  the  same  for  the  benefit  of  herself  and  children  "). 

Little  V.  Bennett,  5  Jones  Va\.  (N.  Ca.)  156. 

Word  V.  Morgan,  5  Cold.  407  (Bequest  of  everything  to  wife,  "to  dispose  of  and 
divide  among  my  oliildren  as  she  may  tiiink  best  "). 

Conf.  Crockett  v.  Crockett,  5  Hare,  326  ("  My  last  desire  is,  that  all  .  .  .  my 
property  shall  be  at  the  disposal  of  my  .  .  .  wife,  C.  C,  for  her.self  and  children  "). 
But  see  2  Pliill.  5.53,  8.  c.  "Loring  v.  Loring,  100  Mass.  340  ("I  give  to  my  wife  my 
personal  property  for  her  benefit  and  supjiort,  and  the  sujjport  of  my  son,  whilst  she 
remains  unmarried  "),  in  wiiich  ca.ses  it  was  held  that  the  donee  took  property  in  trust 
for  herself  and  others  in  equal  shares.  See  also  Fowler  v.  Hunter,  3  V.  &  J  506  ; 
Wil.wn  V.  Ma<ldis<m,  2  Y.  &  C  C.  C  372;  Jubl.er  v  .lubber,  9  Sim.  503;  Pilcher  v. 
]{andall,9  W.  K.  251  ;  Godfrey  v.  Godfrey,  2  N.  R.  16;  and  conf.  Chambers  v.  Atkins, 
1  S.  &  S.  .382. 

In  Wethcrell  v.  Wilson,  1  Keen,  80  (Bequest  of  income  to  a  husband,  "  in  order  the 
better  to  enaldo  him  to  support,  maintain,  and  educate  "  testator's  children) ;  Barnes  v. 
Grant,  26  L.  J.  Ch  92  (lUMjUfst  to  a  wife  "  undi-r  the  firm  conviction  that  sbo  will  dis- 
pose of  and  manage!  the  same  for  the  benefit  of  our  children")  ,  Bittgcrs  v.  IviLtgcrs, 
56  Iowa,  218  (Bequest  of  everything  to  a  wife  "to  control  the  same  and  to  have  all 
tlio  j)rofits  arising  thercfroin,  for  the  purpose  of  raising,  clothing,  and  educating  the 
rhildron  bcjrn  to  ns,  until  such  time  thai  M.,  our  youngest  child,  kIimII  aUain  the  age  of 
fifteen  years,"  &c.) ;  Anderson  v.  Crist,  113  Jnd  r,:,  (liociucst  to  a  wife  "for  the  purjjoso 
of  rearing  and  educating  my  children");  an<l  iJulHnton  v.  Maxam,  140  Mass.  557 
(Ue.Hidue  to  a  daughter,  A.,  "  for  the  nupi)ort  of  my  diiughter  C"),  it  was  held  that 
the  devisee  or  legatee  took  no  beneficial  interest  whatever. 

In  the  following  cases  it  wa.s  held  that  the  doneo  acquired  the  property  subject  to  a 
monil  but  not  Icjcal  obligation  towards  third  perHons    — 

Benson  v.  Whittam,  5  Sim.  22  (Residuary  bequest  to  a  brother.  A.,  "  to  enable 


90  LAMBE  V.   EAMES.  [CHAP.  I. 

him  to  assist  such  of  the  children  of  my  deceased  brother  B.  as  he,  the  said  A.,  may 
liuii  deserving  of  eucouragemeut  "). 

Tlioip  V.  Owen,  2  Hare,  (iOT  ("I  desire  everything  to  remain  in  its  present  position 
during  the  lifetime  of  my  wife,  for  her  use  and  beueht.  ...  I  give  tlie  above  devi.se  to 
my  wife  that  siio  may  support  herself  and  her  children  according  to  her  discretion, 
and  for  that  purpose  "). 

Macnab  v.  Wliitbread,  17  Beav.  299  (Devise  to  a  wife  "absolutely,  and  forever,  in 
the  full  assurance  and  confidence  and  hope  that  she  would  bring  u))  iiis  ciiildren  in  the 
fear  of  God,  and  educate  and  provide  for  them,  the  same  as  it  would  have  been  his  in- 
tention should  it  have  pleased  God  to  spare  his  life"). 

Byne  v.  Blackburn,  26  Beav.  41  (Bequest  of  income  to  a  son-in-law  during  his  life, 
"  nevertheless  to  be  by  him  applied  for  or  towards  the  maintenance,  education,  or 
benefit"  of  the  daughter's  children). 

Re  Robertson's  Trust,  6  W.  R.  405  (Bequest  to  J.  R.,  "  for  the  support  and  mainte- 
nance of  herself  and  his  family"). 

Quayle  v.  Davidson,  12  Moo.  Pr.  C.  268. 

Fox  I'.  Fox,  27  Beav.  301  (Residuary  devise  to  a  wife,  "  to  and  for  her  own  use  and 
benefit,  absolutely,  having  full  confidence  in  her  sufficient  and  judicious  provision  for 
my  dear  children  "). 

Mackett  v.  Mackett,  L.  R.  14  Eq.  49  (Bequest  to  a  wife,  "to  and  for  her  own 
proper  use  and  benefit  forever,  .  .  .  and  the  proceeds  to  be  applied  by  her  in  the 
bringing  up  and  maintenance  of  the  said  J.  M.,  and  all  other  the  children  of  the 
said  S.  M."). 

Farr  v  Hennis,  44  L.  T.  Rep.  202  (Bequest  to  a  niece  "  towards  support  of  herself 
and  children  until  they  shall  attain  the  age  of  twenty-one"). 

Re  liutcliiuson,  8  Ch.  D.  540  (Bequest  of  everything,  "  to  my  dear  wife,  H.  R.,  ab- 
solutely, with  full  power  for  her  to  dispose  of  the  same  as  she  may  think  fit  for  the 
benefit  of  my  family,  having  full  confidence  that  she  will  do  so  ") 

Greene  i\  Greene,  3  Ir.  R.  Eq.  90,  629  (Bequest  to  a  wife,  "  well  knowing  her  sense 
of  justice,  and  love  to  her  family,  and  feeling  perfect  confidence  that  she  will  manage 
the  same  to  the  best  advantage  for  the  benefit  of  her  children  "). 

M'Alinden  v.  M'Alinden,  11  Ir.  R.  Eq.  219  (Devise  to  a  wife,  "  to  be  used  by  her  in 
such  ways  and  means  as  she  may  consider  best  for  her  own  benefit  and  that  of  my 
three  children").     See  also  Brown  ?;.  Casamajor,  4  Ves  498. 

Harper  v.  Phelps,  21  Conn.  257. 

Bryan  v.  Howland,  98  111.  625  (Conveyance  to  A.,  in  trust  for  B.  for  life,  and  to  per- 
mit B.  "  to  use,  occupy,  possess,  enjoy,  improve,  and  build  upon  "  tlie  same,  "  in  any 
manner  he  may  deem  best  for  the  support,  maintenance,  and  benefit  of  himself  and 
his  children  "). 

Zimmer  v.  Sennott,  134  111.  505. 

Randall  v.  Randall,  135  111.  398. 

Spoouer  v.  Lovejoy,  108  Mass.  529  (Residuary  devise  to  a  wife,  "to  her  own  use,  and 
to  be  disposed  of  at  her  decease,  according  to  the  terms  of  any  will  that  she  may  leave. 
She  is,  of  course,  to  charge  herself  with  the  education  and  support  of  our  daughters,  E., 
E.,  and  M.,  so  long  as  they  shall  remain  unmarried  "). 

Whitridge  v.  Whitridge,  71  Md.  105  (Income  to  be  paid  to  a  wife  "for  the  sole  use 
of  herself  and  her  children,  during  the  term  of  her  natural  life  "). 

Rose  V.  Porter,  141  Mass,  309  (Bequest  of  everything  to  two  younger  sons:  "In 
making  this  disposition  of  my  property,  I  assume  that  my  eldest  sou  will  understand 
and  appreciate  my  reasons  for  giving  whatever  property  I  may  have  at  my  decease  to 
his  younger  brothers,  and  that  they  on  their  part  will  not  fail  to  do  for  him  and  his  fam- 
ily all  that  in  the  circumstances  the  truest  fraternal  regard  may  require  them  to  do  "). 

Sturgis  0.  Paine,  146  Ma.ss.  354  ("And  in  the  event  of  the  decease  of  my  said  son, 
his  said  wife,  so  long  as  she  shall  survive  him  and  continue  his  widow,  shall  in  like 
manner  receive  the  said  rents,  interest,  and  profits  to  her  own  use,  and  for  the  education 
and  support  of  my  said  grandchildren  at  her  discretion  "). 

Corby  I'.  Corby,  85  Mo.  371  (Be(iuest  to  a  wife:  "After  providing  for  her  own 
wants  and  comforts,  I  leave  to  the  discretion  of  my  dear  wife  to  give  to  such  of  my 


SECT.  VI.]  STEAD  V.  MELLOR.  91 


STEAD  V.  MELLOR. 

In  the  High  Coukt  of  Justice,  before  Sir  George  Jessel,  M.  R., 

March  12,  1877. 

[Reported  in  5  Chancery  Division,  225] 

Motion  for  judgment. 

Ursula  Crook,  by  her  will,  dated  the  13th  of  May,  1872,  appointed 
the  plaintiffs  her  executors,  and,  after  making  divers  specific  and  pecu- 
niary bequests,  gave  all  her  personal  estate,  except  what  she  otherwise 
bequeathed  by  that  her  will,  to  the  plaintiffs,  upon  trust  to  convert  the 
same  into  money,  and,  after  payment  of  her  funeral  and  testamentary 
expenses  and  debts,  and  the  legacies  other  than  specific  given  by  her 
will,  to  hold  the  residue  of  the  said  moneys  "  in  trust  for  such  of  my 

relations  such  aid  or  assistance  as  my  dear  wife  may,  of  her  own  will,  think  proper  and 
just."  &c). 

Hunt  V.  Hunt,  11  Nev.  442  (Devise  to  a  wife:  "Having  the  fullest  confi,dence  it 
her  capacity,  judgment,  discretion,  and  affection,  to  properly  bring  np,  educate,  and 
provide  for  our  children,  and  to  manage  and  dispose  of  my  said  property  in  the  best 
manner  for  their  interest  and  her  own  "}. 

Hoxsey  v.  Hoxsey,  37  N.  J.  Eq.  21. 

Wilde  V.  Smith,  2  Dem.  93  (Residuary  bequest  to  S.  :  "It  is  my  desire  and  request 
that  S.  shall  watch  over  and  care  for  my  friend  W.,  and  see  that,  at  no  time,  is  she 
allowed  to  suffer  or  want  for  the  necessaries  of  life  "). 

Lawrence  v.  Cook,  104  X.  Y.  632,  reversing  s.  c,  32  Hun,  126  (Residue  to  a  daugh- 
ter ;  "  I  commit  my  granddaughter  ...  to  the  cliarge  and  guardianship  of  my 
daughter.  ...  I  enjoin  upon  her  to  make  such  provision  for  my  said  grandchild  out 
of  my  residuary  estate  ...  in  such  niaiuicr  and  at  such  times  and  in  sucli  amounts  as 
she  may  judge  to  be  expedient  and  conducive  to  the  welfare  of  said  grandchild  and 
her  own  sense  of  justice  and  Christian  duty  shall  dictate"). 

Paisley's  Appeal,  70  Pa.  l.')3  (Request  of  income  to  wife  for  life,  "for  her  support 
and  the  support  and  education  of  my  children  under  the  direction  of  my  executors"). 

Cox  V.  Rogers,  77  Pa.  ICO  (Bequest  of  the  entire  personalty  to  a  wife,  "to  enable 
her  to  rai.ne,  support,  and  jirovide  for  the  younger  part  of  my  family"). 

Biddle's  Ajipcal,  SO  I'a.  2.'>8  (Bequest  of  income  to  a  wife  during  widowhood  and  mi- 
nority of  testator's  children,  "  to  be  used  and  app!ie<l  by  her  to  the  maintenance,  support, 
and  education  of  my  children  who  m.ay  be  under  age,  but  without  being  called  upon 
to  give  any  .account  of  tlie  manner  in  which  slic  may  have  applied  it,  as  it  is  my  wish 
tiiat  she  shall  have  the  absolute  control  of  its  use  and  disposition  so  long  as  she  shall 
remain  my  widow  ") 

Dougherty's  Est.,  5  W.  N.  C.  (Pa.)  556  (Bequest  to  Rev.  E.  M. :  "I  earnestly 
request  and  desire  that  he  will  say  or  procure  to  be  said  three  masses  a  week  for  the 
repose  of  my  soul  "). 

Lescsne  v.  Witte,  5  S.  C  N.  9.  450  ("I  devise  all  my  estate  to  my  beloved  wife, 
feeling  entire  confidence  that  she  will  use  it  judiciously  for  the  benefit  of  herself  and 
our  children  "). 

Rhett  i;  Mason,  18  Oratt.  541  ("I  devise  all  my  estate  .  .  to  my  beloved  wife, 
B.  C.  M..  for  her  maintenatiee  and  support,  and  for  the  maintenance  and  support  of 
our  children  during  her  life  and  widowhood  "). 

.Seamonds  v.  Hodge  (W.  Va.  1892),  15  S.  E.  R.  150  (Bequest  of  everything  to  a 
wife,  "  for  the  purpose  of  raising  her  cliiMren,  to  have  and  to  hold  to  her  and  her  heirs 
forever").  — Ed. 


92  STEAD   V.    MELLOR.  [CIIAP.  L 

uieecs,  Martha  Paulton  nud  Ursula  Mellor  Taylor,  as  shall  be  living  at 
my  death,  my  desire  being  that  they  shall  distribute  such  residue  as 
they  think  will  be  most  agreeable  to  my  wishes." 

The  testatrix  died  on  the  16th  of  January,  1876,  leaving  Mrs.  Paul- 
ton  and  IMrs.  Taylor  her  surviving. 

The  action  was  brought  l)y  tlie  plaintiffs,  as  executors  of  the  will,  to 
have  the  rights  and  interests  of  all  persons  in  the  residuary  personal 
estate  of  the  testatrix  ascertained  and  declared  ;  and  the  only  question 
calling  for  a  report  was,  whether  Mrs.  Paulton  and  Mrs.  Taylor  were 
entitled  to  the  residue  beneficially  or  as  trustees ;  and  if  as  trustees, 
ichen  who  were  the  persons  beneficially  entitled  thereto. 

C.  Steivart,  for  the  plaintiffs. 

Cookson,  Q.  C,  and  Cahlecott,  for  some  of  the  next  of  kin. 

Davey,  Q.  C,  andT7.  F.  Laivrence,  for  others  of  tlie  next  of  kin. 

Ritssell  Roberts,  for  the  trustees  of  Mrs.  Taylor's  mortgage  settlement. 

Chitty,  Q.  C,  and  Alfred  Bailey,  for  Mrs.  Paulton  and  Mrs.  Taylor, 
were  not  called  on. 

Jessel,  M.  R.  I  have  often  said  that  it  is  the  duty  of  the  court,  in 
construing  wills  of  personal  estate,  to  look  at  the  whole  will,  in  order 
to  ascertain  the  intention  of  the  testator,  not  forgetting  to  apply  gen- 
eral rules  of  construction,  where  such  are  applicable,  but  always  giving 
to  the  language  of  the  instrument  its  literal  meaning,  so  far  as  the  con- 
text allows. 

I  have  been  referred  to  the  case  of  Briggs  r.  Penny'  as  an  authority 
for  deciding  that  a  trust  is  created.  In  that  case.  Lord  Truro  laid 
down  what  he  considered  to  be  the  general  principle.  That  is,  of 
course,  binding  on  me,  although  the  decision  itself  would  not  necessa- 
rily be  so,  even  if  the  words  in  the  case  before  me  were  identically  the 
same.     Gibson  v.  Fisher.^ 

Now,  all  that  Lord  Truro  said  with  respect  to  the  principles  which  he 
deduced  from  the  then  state  of  authority  was  this:  "I  conceive  the 
rules  of  construction  to  be,  that  words  accompanying  a  gift  or  bequest 
expressive  of  confidence  or  belief,  or  desire  or  hope,  that  a  particular 
application  will  be  made  of  such  bequest,  will  be  deemed  to  import  a 
trust  upon  these  conditions  :  first,  that  they  are  so  used  as  to  exclude 
all  option  or  discretion  in  the  party  who  is  to  act,  as  to  his  acting  ac- 
cording to  them  or  not ;  secondly,  the  subject  must  be  certain  ;  and, 
thirdly,  the  objects  expressed  must  not  be  too  vague  or  indefinite  to  be 
enforced." 

Lower  down,  he  says  that  there  is  no  real  and  substantial  distinction 
between  the  case  of  a  testator  who  intends  to  make  known,  or  has  pre- 
viously made  known,  his  views  and  wishes  to  the  legatee,  and  the  case 
of  a  testator  who  gives  all  his  property  to  A.  on  trust,  but  never  de- 
clares that  trust.  To  this  I  respectfully  agree.  But  beyond  these  gen- 
eral principles,  I  find  nothing  in  Briggs  v.  Penny  to  guide  me  to  a 

1  3  MacN.  &  G.  149.  2  Law  Rep.  b  Eq.  51. 


SECT.  VI.]  STEAD   V.   MELLOR.  93 

conclusion  in  the  present  case.  It  was  a  decision  on  the  particular 
words  of  a  will.  It  has  never  been  followed,  as  far  as  I  know  ;  at  any 
rate,  I  am  not  aware  of  any  case  in  which  words  so  vague  and  so  indefi- 
nite have  been  held  to  create  a  trust.  The  words  were,  "  well  knowing 
that  she,"  the  legatee,  "  will  make  a  good  use  and  dispose  of  it  in  a 
manner  in  accordance  with  my,"  the  testatrix's,  "  views  and  wishes." 
Lord  Truro  appears  to  have  been  of  opinion  that  the  words  "  well 
knowing  "  were  equivalent  to,  if  not  synonymous  with,  the  expression 
"  in  the  fullest  confidence,"  and  that  they  were  used  in  such  a  manner 
as  to  exclude  all  option  or  discretion.  With  all  deference  to  his  Lord- 
ship, that  is  a  most  unsatisfactory  reason.  Why  should  the  words 
"  well  knowing  "  bear  any  other  than  their  natural  meaning?  No  rea- 
son is  given  why  they  should.     However,  that  is  the  decision. 

Whether  the  case  of  Briggs  v.  Penny  was  rightly  or  wrongly  decided, 
(and  I  must  not  forget  that  it  affirmed  the  decision  of  a  very  learned 
judge,  the  Vice  Chancellor  Knight  Bruce,)  it  is  distinguishable  from  the 
present  case,  and  as  the  words  are  not  the  same,  and  I  am  not  bound 
to  regard  it  as  a  binding  authority  on  the  construction  of  the  particular 
will  now  before  me,  I  am  free  to  inquire  what  the  testatrix  did  really 
mean  ;  and  unless  I  find  in  the  will  something  equivalent  to  a  declara- 
tion that  the  residuary  legatees  take  as  trustees,  I  must  held  that  they 
take  a  beneficial  interest.  The  testatrix  gives  all  her  personal  estate, 
except  what  she  otherwise  bequeathed  by  her  will  or  any  codicil  thereto, 
to  trustees  upon  trust  to  convert  the  same  into  money.  It  is  clear  that 
she  knew  how  to  create  a  trust.  And  then,  after  payment  of  her  per- 
sonal and  testamentary  expenses  and  debts  and  legacies,  slie  directs  her 
trustees  to  hold  the  residue  of  her  money  upon  trust  for  her  two  nieces, 
her  desire  being  that  they  shall  distribute  such  residue,  not  "  in  accord- 
ance with  my  views  and  wishes,"  as  in  the  case  before  Lord  Truro,  or 
"  as  tliey  know  will  be  most  agreeable  to  my  wishes,"  but  "  as  they 
think  will  be  most  agreeable  to  my  wishes."  What  is  that  but  to  make 
them  judges  of  the  mode  of  distribution,  and  place  the  residue  at  their 
absolute  disposal? 

But  for  the  case  of  Briggs  v.  Penny  this  case  would  not  have  been 
arguable.  There  must  be  a  declaration  that  Mrs.  Paulton  and  Mrs. 
Taylor  take  tlie  residue  for  their  own  l)enefit.^ 

'  In  the  following  cnses,  where  the  object  wa.s  indefinite,  the  words  were  held  to  1)0 
proratory  merfily,  and  therefore  to  cToato  no  trust. 

HoliinHon  r.  I  )nsf;ate,  2  Vprn.  181  (IJcquost  of  .£200,  "  to  he  at  the  disposal  of  Ills  wife, 
in  and  hy  her  lawt  will  and  toHtament,  to  whom  Hhe  shall  think  fit  to  give  the  same  "). 

.Maskfdyne  r.  .Ma-Hkclyno,  y\mb.  750  (Legacy  to  a  brother,  "  to  be  disposed  of  hy  him 
by  his  will  as  he  shall  see  fit  "). 

Gibba  V.  Kumsey,  2  V.  &  B.  294  (Legacies  of  £200  to  each  of  the  trustees  IL  R.  and 
J.  R.  Residuary  bci|npst  nnto  rny  said  tnistccs  ami  oxecutnrs,  II.  R.  and  J.  R.,  to  bo 
disposed  of  nnto  such  person  and  persons,  and  in  siich  maimer  and  form,  an<l  in  such 
sum  and  sums  of  money  as  they  in  their  discretion  shall  think  j)roper  and  expedient "). 
But  in  Buckley  u.  Bristow,  10  .Jnr.  n.  s.  109."),  Sir  W.  T'.  Wood,  V.  C,  said  (p.  1097): 
"  Lord  Cottenham  does  uot  appear  to  have  been  altogether  satisfied  with  Gibbs  v.  Rum* 


94  STEAD  V.   MELLOR.  [CIIAP.  L 

sev ;  and  I  apprcliciul  no  case  would  he  decided  according  to  it  where  the  gift  is  not 
precisely  and  distinctly  in  the  words  there  mentioned. " 

Ex  parte  I'ayne,  2  Y.  &  C.  Ex.  636. 

Southouse  c.  Bate,  16  Beav.  132  (Bequest  of  income  to  B.  W.,  "And  at  her  death 
that  she  might  leave  it  to  her  children,  or  whom  she  might  choose  "). 

Shepherd  v.  Nottidge,  2  Johns.  &  H.  766. 

Reid  V.  Atkinson,  Ir.  R.  5  Eq.  373  (Bequest  of  everything  to  a  wife,  "  to  have,  hold, 
and  enjoy  in  the  fullest  and  amplest  manner  for  the  term  of  her  natural  life,  with  full 
power  to  di.^pose  of  all  the  aforesaid  property,  both  real  and  personal,  as  she  may  juilge 
best  aud  wisest,  relyiug  with  implicit  confidence  on  her  discretion,  and  well  satisfied 
in  my  mind  that  she  will  make  snch  distribution  or  disposal  of  it  as  will  perfectly  ac- 
cord with  my  wishes  on  that  subject,  with  all  of  which  she  is  thoroughly  acquainted  "). 

Bristol  V.  Bristol,  53  Conn.  242,  254  (scmble). 

Giles  r.Anslow,  128  111.  187  (Devise  to  his  wife:  "I  have  full  confidence  that  she 
will  do  what  is  best  and  proper  with  my  effects,  and  that  she  would  do  with  my  prop- 
erty the  same  as  I  would  wish  to  have  done,"  &c.). 

Re  Keleman,  126  N.  Y.  73  (Devise  toT.  W.".  "I  hereby  request  him  to  carry  into 
effect  my  wishes,  but  this  is  not  to  be  construed  into  an  absolute  direction  on  my  part, 
but  merely  my  desire  "). 

Wells  V.  Doaue,  3  Gray,  201  ("  It  is  my  will  aud  intention  that  the  said  S.  W.  may 
dispose  of  the  furniture,  plate,  pictures,  and  all  other  articles  now  in  my  house,  abso- 
lutely, as  he  may  deem  expedient,  in  accordance  with  my  wishes  as  otherwise  com- 
municated by  me  to  him  "). 

Wells  V.  Hawes,  122  Mass.  97  (Residuary  devise  to  J.  S.,  "having  full  confidence 
that  he  will  so  use  and  dispose  of  it  as  to  carry  out  my  wishes  in  regard  to  the  distri- 
bution of  my  personal  estate,  as  expressed  in  a  memorandum  which  I  shall  leave  in  his 
possession  "). 

Ralston  v.  Telfair,  2  Dev.  Eq.  255  (Residuary  bequest,  "to  be  disposed  of  as  my 
executors  think  proper"). 

Frierson  v.  Presbyterian  Church  (Tennessee,  December,  1872),  1  So.  L.  Rev.  547, 
559,  semble  (Bequest  to  executors  "  in  their  own  right,  trusting  nevertheless  and  be- 
lieving that,  under  a  proper  sense  of  their  obligation  to  their  own  consciences  and  their 
accountability  to  God,  they  will,  as  near  as  they  possibly  can,  in  conformity  with  what 
I  have  herein  indicated,  pay  over  and  contribute  the  same  to  charitable  objects  and 
purposes"). 

In  the  following  cases,  where  the  object  was  indefinite,  the  words  were  held  to  be 
mandatory,  and  therefore  to  create  a  trust,  with  this  result,  that  the  intended  trust  be- 
ing ineffectual,  the  devisee  or  legatee  became  a  constructive  trustee  for  the  heirs  or 
next  of  kin. 

Stubbs  V.  Sargon,  3  M.  &  Cr.  507. 

Briggs  V.  Penny,  3  MacN.  &  G.  149  (A  legacy  of  £3,000  to  S.  P.;  Slso  £3,000  for 
acting  as  executrix.  Residue  to  "  S.  P.  .  .  .  well  knowing  that  she  will  make  a  good 
use  and  dispose  of  it  in  a  manner  in  accordance  with  my  views  and  wishes  ").  Compare 
Irvine  v.  Sullivan,  8  Eq.  673,  679. 

Bernard  v.  Minshull,  Johns.  276  (Testamentary  appointment  to  a  husband  "But  it 
is  my  request  that,  after  using  for  his  own  absolute  u.se  and  benefit  £2,000,  part  of  that 
sum,  ...  he  will  make  such  disposition  of  the  remainder  by  will  or  deed  or  .settlement 
as  he  may  deem  most  desirable  to  carry  out  my  wishes,  often  expressed  to  him  by  word." 
No  wish  had  ever  been  expressed  by  the  wife  to  the  liusband). 

Buckle  V.  Bristow,  10  Jur.  n.  s.  1095  (Devise  to  trustees  upon  trust  for  such  use, 
&c.  as  he  should  appoint:  "  And  in  default  thereof,  then  for  the  same  to  be  expended 
and  appropriated  within  three  years  after  his  decease,  in  such  way  and  manner  and  for 
such  purposes  as  they,  or  the  majority  of  them,  might  in  their  judgment  and  discretion 
agree  upon"). 

Yeap  Cheah  Neo  v.  Ong  Cheng  Neo,  L.  R.  6  P  C  381. 

Ingram  v.  Fraley,  29  Ga.  553  (Devise  of  everything  to  "my  long-tried  friend, 
W.  F.,  .  .  .  having  the  utmost  confidence  that  he  will  entirely  carry  out  my  wishes  and 


SECT.  VI.]  IN   RE  DIGGLES.  95 


In  re  DIGGLES.     GREGORY  v.   EDMONDSON. 

In  the  Court  of  Appeal,  July  6,  1888. 

[Reported  in  39  Chancery  Division,  253.] 

Mart  Ann  Diggles,  widow,  made  her  will,  dated  the  4th  of  August, 
1868,  as  follows  :  "  I  give,  devise,  and  bequeath  all  my  real  and  per- 
sonal property  and  effects  unto  ray  daughter,  Frances  Edmondson,  her 
heirs  and  assigns,  and  it  is  my  desire  that  she  allows  to  my  relative  and 
companion,  Anne  Gregory,  now  residing  with  me,  an  annuity  of  £25 
during  her  life,  and  that  the  said  Anne  Gregory  shall  if  she  desire  it, 
have  the  use  of  such  portions  of  my  household  furniture,  linen,  «S:c.  as 
may  not  be  required  b}-  my  daughter,  Frances  Edmondson.  I  desire 
that  m}-  gold  watch  may  be  given  to  my  grandson  Alfred  Thomas  Ed- 
mondson, and  my  small  diamond  and  emerald  ring  to  m}-  granddaughter 
Frances  Mary  Edmondson.  And  I  hereby  appoint  my  said  daughter 
Frances  Edmondson  and  her  husband  Alfred  Edmonson,  executrix  and 
executor  of  this  my  will." 

The  testatrix  died  on  the  16th  of  September,  1872,  and  the  will 
was  proved  by  Alfred  Edmondson,  power  being  reserved  to  Frances 
Edmondson. 

The  £25  a  year  was  paid  to  Anne  Gregor}'  down  to  1883.  The  pay- 
ment was  then  discontinued,  and  in  March,  1886,  Anne  Gregory  corn- 
desires  as  they  may  he  expressed  hy  me,  either  verbally  or  in  writing ;  and  well  knowing 
that  my  said  friend  will,  by  this  will,  be  able  much  more  effectually  to  dispose  of  my 
estate,  as  I  wish  it  done,  than  I  could  at  this  time  do  myself,  and  with  much  less 
trouble  to  himself"). 

Saylor  r  I'laine,  31  Md.  158  (Residue  to  M.  S.  0.  and  W.,  "to  dispose  of  according 
to  his  or  their  verbal  directions  "). 

Mauf;ht  r.  Getzendanner,  65  Md.  527  (Kesiduo  to  Rev.  II.  G  O.  "And  I  desire 
him  to  use  and  appropriate  the  same  for  such  religious  and  charitable  purposes  and 
objects,  and  in  such  sums  and  in  such  manner,  as  will,  in  his  judgment,  best  promote 
the  cause  of  Christ"). 

Nichols  V.  Allen,  130  Ma.ss.  211  (Residuary  bequest  "to  my  executors  and  the  sur- 
vivor of  them,  or  their  successors,  if  any  such  should  be  appointed,  to  administer  on 
my  e.state,  to  be  by  them  distributed  to  such  persons,  societies,  or  institutions  as  they 
may  consiib-r  inf)Ht  deserving  "). 

Schmncker  r  Rffl,  01  Mo.  592  ("To  A.,  to  be  applied  by  hfm  to  a  specific  purpose 
which  I  have  explained  to  him"). 

Willfts  V.  VVillctH,  103  N.  Y.  050,  reversing  s.  c,  35  Ilun,  401,  Rapalln,  .1.  dissenting 
("I  do  give  and  bcqucriih  to  my  son  K.  W.,  my  frionds,  W.  H  M.  and  C.  (».,  and  my 
nephews  J.  T.  W.,  K.  R.  W.,  and  E.  B.  W..  and  m}  sonin-law  E.  M.,  the  survivors 
and  survivor  of  them,  the  sum  of  $100,000,  relying  upon  them  to  dispose  of  the  same 
for  the  benefit  of  such  charitalib'  and  bfiicvolcnt  anil  pf'.iiratiotial  purposes  as  they  shall 
judge  will  most  promote  the  comfort  and  improve  the  condition  of  the  poor ,  or  in  case 
any  of  my  de.scendants  should  become  poor  and  needy,  then  to  apply  in  whole  or  in 
part  to  such  doscrndants"). 

Re  Ingersoll  (N.  Y.  1892),  31  N.  E.  R.  47  —  Eu.  .i 


96  IN  RE  DIGGLES.  [CHAP.  I. 

nicnc'Cil  this  action  in  the  Court  of  Chancery  of  the  County  ralatine 
against  Mr.  and  INIrs.  Edniondson,  claiming  (1)  payment  by  the  defend- 
ants of  the  arrears  of  the  annuity  and  of  a  sufficient  sum  to  purchase 
a  government  annuity  of  £25  for  her  life,  or  the  appropriation  of  a 
sufficient  sum  to  meet  the  annuity,  and  (2)  administration,  if  necessar}', 
of  the  real  and  personal  estate  of  the  testatrix,  on  tlie  footing  of  wilful 
default. 

The  Vice  Chancellor  of  the  County  Palatine,  on  the  15th  of  March, 
1887,  made  an  order  declaring  that  Mrs.  Edraondson  became  entitled  to 
the  real  and  personal  property  and  effects  of  the  testatrix,  subject  to  a 
valid  trust  to  pay  thereout  to  the  plaintiff  an  annuity  gf  £25  during 
her  life.  The  order  went  on  to  direct  administration  of  the  estate  on 
the  footing  of  wilful  default  as  against  Alfred  Edmondson.' 

The  plaintiff  appealed,  asking  for  an  order  in  the  terms  of  the  claim. 
The  defendants  gave  notice  that  they  should  contend  that  the  judgment, 
so  far  as  it  declared  a  trust  in  favor  of  the  plaintiff,  should  be  reversed, 
and  that  the  order  directing  accounts  and  inquiries  should  be  dis- 
charged and  the  action  dismissed. 

liotch,  for  the  appellant. 

Neville^  Q.  C,  and  Ilorridge^  for  the  defendants. 

Cotton,  L.  J.  Tliis  is  an  appeal  from  a  judgment  of  the  Vice 
Chancellor  of  the  Count}'  Palatine,  who  has  directed  accounts  and  in- 
quiries as  to  the  estate  of  Mrs.  Diggles,  at  the  suit  of  Anne  Gregor}', 
who  claims  to  be  entitled  to  an  annuity  of  £25  under  her  will.  The 
question  is,  whether  upon  the  true  construction  of  the  will  Anne  Greg- 
or}'  was  a  legatee.  I  think  that  the  testatrix  clearly  did  not  intend  the 
£25  a  year  to  be  provided  for  by  the  executors  in  the  discharge  of  their 
duties  as  such.  The  Vice  Chancellor  has  directed  accounts  of  the 
estate,  and  the  appellant,  who  asks  for  more  than  the  Vice  Chancellor 
gave  her,  contends  that  it  was  the  duty  of  the  executors  to  set  aside  a 
sufficient  part  of  the  assets  to  provide  for  the  annuity,  before  handing 
over  the  residue  to  the  residuary  legatee.  This  contention,  in  my 
opinion,  is  unfounded.  The  direction,  if  binding  direction  there  be, 
is  one  to  be  performed  b\'  the  residuar}'  legatee,  and  not  b}'  the  execu- 
tors. But  docs  it  impose  any  trust  or  duty  on  her  as  the  Vice  Chan- 
cellor has  held  that  it  does?  I  think  not.  I  think  that  what  the 
testatrix  meant  was,  to  leave  all  her  property  to  her  daughter,  with  the 
expression  of  a  wish  that  she  would  allow  Anne  Gregory  £25  a  year, 
and  give  her  any  part  of  the  furniture  which  she  did  not  want.  She 
means  to  put  her  daughter  in  her  own  place,  saying,  "  I  ask  you  to 
make  what  I  think  would  be  a  proper  provision  for  Anne  Gregory," 
but  without  intending  to  bind  her  to  do  so.  Construing  the  will  with- 
out reference  to  the  authorities,  I  think  that  is  its  true  construction.  It 
is  said,  however,  that  the  authorities  support  the  appellant's  contention. 
No  doubt  in  the  old  cases  slight  expressions  were  laid  hold  of  to  create 

1  The  opinion  of  Bristowe,  V.  C,  given  in  a  note,  the  arguments  of  counsel  on  th© 
appeal,  and  the  concurring  opinions  of  Bowen  and  Fry,  L.  JJ.,  are  omitted.  —  Ed. 


SECT.  VI.]  IN  RE  DIGGLES.  97 

a  trust,  but  the  recent  authorities  have  gone  tlie  other  way.  I  adhere 
to  what  I  said  in  In  re  Adams  aud  the  Kensington  Vestry :  ^  "  Having 
regard  to  the  later  decisions,  we  must  not  extend  the  old  cases  in  any- 
way, or  rely  upon  the  mere  use  of  any  particular  words,  but,  consider- 
ing all  the  words  which  are  used,  we  have  to  see  what  is  their  true 
effect,  and  what  was  the  intention  of  the  testator  as  expressed  in  his 
will."  A  reasonable  construction  is  to  be  given  to  the  will ;  and  in  m}' 
opinion  upon  the  reasonable  construction  of  this  will  the  testatrix  can- 
not be  held  to  have  intended  to  give  a  binding  direction.  In  my  judg- 
ment, therefore,  the  action  must  be  dismissed.^ 

1  27  Ch.  T).  394,  410. 

2  In  the  followiug  cases,  where  the  subject,  object,  and  mode  of  distribution  were 
clearlv  defined,  the  words  were  held  to  be  mandatory,  and  therefore  to  create  a  trust :  — 

Ee'les  V.  England,  2  Vern.  466 ;  Tree.  Ch.  20o',  s.  c.  (Bequest  of  £300  to  K.  H. : 
"  but  my  will  aud  desire  is  that  he  will  give  the  said  £300  unto  his  daughter  Susan  at 
the  time  of  his  death,  or  sooner,  if  there  be  occasion  for  her  better  advancement  and 
preferment"). 

Clifton  V.  Lombe,  Amb.  519  ("  In  consideration  that  Lady  Lombe  has  promised  to 
give  what  I  shall  give  her  to  her  aud  my  children  at  her  death,  I  give  her,"  &c.). 

Bute  V.  Stuart,  1  Bro.  P.  C.  (Toml.  ed.)  476  ;  Tibbits  v.  Tibbits,  19  Ves.  656  ;  Jac. 
317,  8.  c.  (Devise  to  a  son  :  "  And  I  do  hereby  recommend  to  my  said  son  to  continue 
his  cousins  J.  T.  aud  R.  T.  in  the  occupation  of  their  respective  farms  in  the  couuty 
of  Warwick,  as  heretofore,  and  so  long  as  they  continue  to  manage  the  same  in  a  good 
and  husbandlike  manner,  and  to  duly  pay  the  rents"). 

Taylor  v.  George,  2  V.  &  B.  378  (To  a  brother.  Codicil:  "I  do  hereby  require 
aud  entreat  my  dear  brother  that  lie  will  either  by  will  or  deed  settle  and  secure 
£500  to  be  paid  at  his  decease  to  E.  T.  .  .  .  I  have  omitted  to  express  tlie  same  in  my 
will,  not  doubting  but  my  dear  brother  will  readily  comply  with  the  request "). 

Prevost  V.  Clark,  2  Mad.  458  ("  Convinced  of  the  high  sense  of  honor,  the  probity 
and  affection  of  my  son  in  law,  Edward  Clarke,  I  entreat  him,  should  he  not  be 
blessed  with  children  by  my  daugliter,  and  survive,  that  he  will  leave  at  liis  de- 
cease to  my  children  and  grandchildren  the  share  of  my  property  I  have  bestowed 
upon  her  "). 

Horwood  V.  West,  1  S.  &  S.  387  (Testator  gave  cverytliing  by  will  to  his  wife,  and 
recommended  her  by  her  will  to  give  what  she  should  die  possessed  of  to  certain  per- 
sons named). 

Parker  v.  IJolton,  5  L.  J.  n.  s.  Ch.  98  (Devise  of  land  to  a  son  :  "And  I  do  advise 
him  to  settle  it  upon  himself  and  his  issue  male  by  his  lawful  wife,"  &c.). 

Ilinxman  r.  I'oyndor,  5  Sim.  546. 

Baker  c  Mosley,  12  Jur.  740  (Bequest  to  A.,  "  trusting  thnt  he  would  preserve  the 
same,  so  that  after  his  decease  it  might  go  to  and  be  equally  divided  between  his  then 
present  son  and  three  daughters  by  \\\^  late  wife  Alice  "). 

Ford  ;•.  Fowler,  3  I5eav.  140  (HtKiiic'st  to  a  daughter:  "And  I  recommend  to  my 
said  daughter  and  her  said  husband  that  they  do  forthwith  settle  and  assure  the  said 
sum,  together  with  such  sum  of  money  of  his  own  as  the  said  husband  shall  choose, 
for  the  benefit  of  my  said  daughter  .'\ii<l  hor  children  "). 

Ware  v.  Mallard,  21  L.  .J.  (;h.  355  (Testator  gave  liis  entire  property  to  his  wife, 
"  in  full  confidoufo  that  she  will,  in  every  respect,  appropriate  and  apply  tlic  same  unto 
and  for  the  benefit  of  all  my  children  "). 

Bonser  ".  I\iniiear,  2  Giff.  105. 

See  Nowlan  r.  Nelligan,  1  Bro.  C.  C.  489. 

Gary  v.  Cary,  2  Sch.  &  Lcf.  173,  189  (To  a  son,  "  in  order  to  exonerate  my  real 
estate  and  enable  my  son  to  pay  off  my  said  di-bts  and  encumbrances  "). 

Malone  v.  O'Connor,  LI.  &  G.  t  I'lunkct.  465. 


age"). 


98  IN  RE  DIGGLES.  [CHAP.  I. 

Wilson  V.  Graham,  12  Ont.  469. 

McReo  V.  Means,  34  Ala.  349  (Residuary  bequest  to  a  husband,  to  his  use,  behoof, 
and  benefit  in  fee  simple,  "  but  should  my  said  husband  die  witliout  issue  of  his  body, 
it  is  my  wish  and  will  he  shall  give  all  of  said  pro])erty  to  H."). 

Reed  v.  Reed,  30  lud.  419  (S200  to  my  son,  "which  said  $200  it  is  my  wish  my 
son  shall  add  to  the  advancement  he  may  make  to  his  son  R.,  when  R.  comes  of 

Bohn  r.  Barrett,  1^  Ky.  378  ("  It  is  my  request,  .  .  .  but  this  request  is  not  to  be 
legally  binding  upon  him,  but  I  desire  to  leave  the  same  entirely  to  his  discretion,  and 
to  make  no  requirement  of  him  that  would  be  legally  binding  in  a  court  of  equity  or 
elsewhere"). 

Negroes  v.  Plummer,  17  Md.  165  (Devise  of  everything  to  a  sister:  "  It  is  my  wish 
and  desire,  in  case  my  said  sister  die  without  issue,  that  she  shall  will  and  devise  all 
my  negroes  to  be  free,  or  manumit  them  in  any  other  way  she  may  think  proper;  this 
request  I  hope  she  will  comply  with  in  time,  so  as  to  carry  my  wish  into  effect "). 

Hondley  v.  Wrightson,  GO  Md.  198  ("To  my  wife  .  .  .  with  a  special  request  that 
at  her  death  she  give  the  said  lands  to  be  equally  divided  between  her  near  relatives 
and  mine  "). 

Rich  V.  Hosiers,  14  Gray,  174  (Bequest  to  trustees  for  the  benefit  of  testator's  sisters 
and  their  children). 

Van  Duyne  c.  Van  Duyne,  2  McCart.  503,  reversing  s.  c.  1  McCart.  397  (Devise  to 
two  children,  "  hoping  and  believing  they  will  do  justice  hereafter  to  my  grandson, 
H.  V.  D.,  to  the  amount  of  one  half  of  the  said  homestead  farm  "). 

Eddy  I'.  Hartshorn,  34  N.  J.  Eq.  419  ("To  P.  H.  .  .  .  with  the  request  that  upon 
his  death  he  leave  the  same  to  A.  and  B.  in  equal  portions  "). 

Eberhardt  i-.  Perolin  (N.  J.  Eq.  1892),  23  Atl.  R.  501. 

Phillips  V.  Phillips,  112  N.  Y.  197  (Bequest  of  everything  to  a  wife,  "  If  she  find  it 
always  convenient  ...  to  give  my  brother  E.  W.  during  his  life  $700  per  annum,  I 
wish  it  to  be  done  "). 

Cook  V.  Ellington,  6  Jones  Eq.  (N.  Ca.)  371  (Bequest  to  a  wife,  "and  my  wish  is 
that,  at  her  death,  she  will  give  the  one  half  of  all  I  give  her  ...  to  my  brother 
J.  P.  C"). 

Anderson  v.  Hammond,  2  Lea,  281  (To  a  wife :  "  It  is  my  wish  and  desire  that  my 
wife  shall  pay  $200  annually  ...  to  my  nephew  J.  L.,  for  the  purpose  of  educating 
him"). 

Harrison  v.  Harrison,  2  Grat.  1  ("  In  the  utmost  confidence  in  my  wife,  I  leave  to 
her  all  my  worldly  goods,  to  sell  or  keep  for  distribution  amongst  our  dear  cliildren, 
as  she  may  think  proper.  My  whole  estate,  real  and  personal,  is  left  in  fee  simple  to 
her,  only  requesting  her  to  make  an  equal  distribution  amongst  our  heirs  "). 

Knox  V.  Knox,  59  Wis.  172  (Gift  to  wife  of  "all  my  real  and  personal  estate,  .  .  . 
having  full  confidence  in  my  said  wife,  and  hereby  request  that,  at  her  death,  she 
will  divide  equally  .  .  .  between  my  sons  and  daughters  all  the  proceeds  of  my  said 
property,"  &c.). 

In  the  following  cases,  where  the  subject,  object,  and  mode  of  distribution  were 
clearly  defined,  the  words  were  held  to  be  precatory  merely,  and  therefore  to  create 
no  trust :  — 

Cunliffe  v.  Cunliffe,  Amb.  686  (Bequest  to  a  son :  "  Nevertheless,  in  case  his  son 
Ellis  should  happen  to  depart  this  life  without  a  son  or  sons  born  of  his  body  in  his 
lifetime,  or  in  due  time  after  his  death,  then  and  in  such  case  he  recommended  it  to 
him  to  give  and  devise  the  said  sugar-houses  and  joint  stock  in  trade  there  to  his 
brother  Robert "). 

Hoy  V.  Master,  6  Sim.  568  ("  The  other  two  thirds  shall  be  at  the  sole  and  entire 
disposal  of  my  said  wife,  Louisa  Bird,  tru.sting  that,  should  she  not  marry  again  and 
have  other  children,  her  affection  for  our  joint  offspring,  the  said  Marian  Bird,  will  in- 
duce her  to  make  our  said  daughter  her  principal  heir"). 

Young  V.  Martin,  2  Y.  &  C.  Ch.  582  (Testator  gave  his  daughter  a  free  power  of 
appointment  over  certain  property,  adding  that  he  recommended,  though  he  did  not 


SECT.  VI.]  IN  RE  DIGGLES.  99 

absolutely  enjoin,  his  daughter  to  distribute  the  same,  at  her  decease,  amongst  her 
daughters  in  equal  shares). 

Winch  V.  Brutton,  14  Sim.  379  ;  Huskisson  v.  Bridge,  4  DeG.  &  Sm.  245. 

Webb  V.  Wools,  2  Sim.  n.  s.  267  (Gift  of  everything  "unto  my  dear  wife,  Jane, 
to  and  for  her  own  use  and  benefit,  upon  the  fullest  trust  and  confidence  reposed 
in  her  that  she  shall  dispose  of  the  same  to  and  for  the  joint  benefit  of  herself  and 
my  children  "). 

Palmer  r.  Simmonds,  2  Drew.  221  (Residuary  devise  to  a  nephew,  "  for  his  own  use 
and  benefit,  as  I  have  full  confidence  in  him  that,  if  he  should  die  without  lawful  issue, 
he  will  .  .  .  leave  the  bulk  of  my  said  residuarv  estate  unto  the  said  W.  F.  S.,  J.  S., 
and  T.  E.  S.  equally  "). 

Eaton  V.  Watts,  4  Eq.  151  (Bequest  of  everything  "  to  my  dearly  beloved  husband, 
.  .  .  hoping  that  he  will  leave  it  after  his  death  to  my  son  W.  C.  W.,  if  he  is  worthy 
of  it,  with  certain  conditions  hereunto  auuexed,  viz."). 

House  v.  House,  W.  N.  (1874),  189  (Residuary  bequest  "unto  my  said  son  John, 
requesting  him  that,  if  he  should  not  find  an  opportunity  to  dispose  of  my  freehold 
estate  at  Whitechurch  greatly  to  his  advantage,  and  to  the  benefit  of  his  family,  that 
the  said  estate  should  belong,  after  him,  to  his  eldest  son"). 

Wheeler  v.  Wheeler,  1  Giff.  300;  Lefroy  v.  Flood,  4  Ir.  Ch.  1. 

McCormick  v.  Grogan,  1  Ir.  R.  Eq.  313  ;  L.  R.  4  H.  L.  82,  s.  c. 

Ellis  c.  Ellis,  15  Ala.  296  (Bequest  of  everything  to  a  wife,  "recommending  to  her 
at  the  same  time  to  make  some  allowance,  at  her  convenience,  to  each  of  my  brothers 
aud  sisters  ;  say  to  each  $1,000  "). 

lie  Whitcomb's  Estate,  86  Cal.  265  (Devise  to  a  nephew :  "  I  recommend  to  him  to 
leave  his  portion  thereof,  after  his  own  death  and  the  death  of  his  wife,  to  his  son 
and  his  chiMren  and  descendants,  and  in  default  of  such  to  Harvard  College  "). 

Hess  V.  Siiigler,  114  Mass.  56  (Residuary  devise  to  a  son :  "  I  hereby  signify  to  my 
said  son  my  desire  and  hope  that  he  will  so  provide,  by  will  or  otherwise,  that,  in  case 
he  shall  die  leaving  no  lawful  issue  living,  the  property  which  he  will  take  under  this 
will  shall  go  in  equal  shares  "  to  certain  specified  persons). 

Sears  r.  Cunniiigliam,  122  Mass.  538  (Devise  of  everytiiing  to  a  wife,  "in  her  own 
name  and  for  her  own  purposes,  with  only  this  condition,  .  .  .  and  that  I  wish,  at  the 
death  of  my  wife  C,  that  she  should  make  an  equal  division  of  her  estate  to  such  chil- 
dren as  survive  her"). 

Barritt  v.  Marsh,  126  Mass.  213  (Bequest  to  a  wife:  "I  wish  my  wife,  when  she 
dies,, to  give  her  property  to  my  daughters.  It  is  my  desire  that  my  property  should, 
after  the  decease  of  my  wife  and  daugliters,  descend  to  the  children  of  my  daughters 
respectively  if  they  are  married  "). 

Bacon  i;.  Ransom,  139  .Vlas.s.  117  (To  A.  and  B.  "as  their  absolute  property.  ...  I 
request  A.  and  B.  to  use  the  fund  to  further  wiiat  is  called  tiio  Woman's  Riglits 
Cau.se.  But  neither  is  under  any  legal  respon.siljility  to  any  one  or  any  court  to 
do  so  "). 

Wood  V.  Seward,  4  Redf.  271  (Provision  that  A.  an<l  B.  should  occupy  a  certain 
house :  "  But  this  dau.se  in  my  wll  is  not  to  be  cousidercd  as  a  direction,  but  merely 
as  a  Hiiggestion  of  my  wish  or  desire  "). 

Bowker  c.  Wells,  2  How.  I'r.  n.  s.  150  (Devise  to  four  persons,  "having  entire 
confidence  that  these  four  gentlemen  will,  although  under  no  legal  obligation  so  to  do, 
observe  my  wi.shes ;  and  my  wish  is,"  &c.). 

See  Sjx-airs  v.  Ligou,  59  Tex.  233. 

In  the  following  caflps,  where  a  discretion  wafl  given  a,s  to  the  mode  of  distribution 
among  persons  of  a  defined  class,  the  wonls  were  hold  to  bo  mandatory,  and  tlierefore 
to  create  a  trust :  — 

Brest  r.  Oflh-y,  1  Ch.  Rep.  241. 

Burreli  v.  Biirrcll,  Amb.  GOO;  Mason  »•.  Linbury,  cited  in  Ami).  4,  and  2  Ves.  67 
("I  give  to  my  brother.  Wobert  M.-ison,  .£2,0(K»,  which  I  dcfire  him,  at  his  dcatli,  to 
give  to  his  son  and  hia  children,  and  to  tho  children  of  his  late  daughter,  as  he  should 
think  fit"). 


100  IN   RE   DIGGLES.  [CIIAP.  I. 

Massey  r.  Shermnn,  Amb.  520  (Devise  of  copyhold  to  his  wife  in  fee,  "not  doubt- 
ing  but  tiiiit  my  wife  will  dispose  of  the  same  to  ami  amongst  my  children,  as  she 
shall  please"). 

I'iorson  c.  Garnet,  2  Bro.  C.  C.  38,  226  (Bequest  to  P.  P.:  "And  it  is  my  dying 
reiiuest  to  the  saiil  1'.  P.,  that,  if  he  sliall  die  witliout  leaving  issue  living  at  his  death, 
that  the  saiii  P.  P.  do  dispose  of  what  fortune  he  shall  receive  under  this  my  will 
to  and  among  the  descendants  of  my  late  aunt,  A.  C,  his  grandmother,  in  such  man- 
ner and  proportion  as  ho  shall  tliink  projier"). 

Kichardson  l\  Chapman,  7  Bro.  P.  C.  (Toml.  ed.)  318. 

Brown  v.  Higgs,  8  Ves.  561  ("I  authorize  and  empower  my  nephew  John  Brown 
to  receive  the  rent,"  &c.,  "and  to  dispose  of  it  in  the  following  manner,  that  is  to  say, 
to  take  £100  of  it  every  year  to  his  sole  and  separate  use,  and  to  employ  the  re- 
mainder ...  to  such  children  of  my  nephew  Samuel  Brown  as  my  said  nephew  John 
Brown  shall  think  most  deserving,  and  that  will  make  the  best  use  of  it  "). 

Parsons  v.  Baker,  18  Ves.  476  (Devise  to  a  nephew,  "not  doubting,  in  case  he 
should  have  no  child  or  children  of  his  own  body,  but  that  he  will  dispose  and  give 
my  said  real  estate  to  the  female  descendants  of  my  sister,  Deborah  Parsons,  of  Kem- 
erton,  widow,  in  such  part  or  parts  and  in  such  manner  as  he  shall  think  fit,  in  pref- 
erence to  any  descendant  on  his  own  female  line  "). 

Birch  V.  Wade,  3  V.  &  B.  198  ("It  is  my  Will  and  Desire  that  the  other  third 
Part  of  the  Principal  of  my  Estate  and  Effects  be  left  entirely  to  the  Disposal  of  my 
dear  and  loving  Wife  among  such  of  her  Relations  as  she  may  think  proper  after  the 
Death  of  my  aforesaid  Sisters  "). 

Forbes  v.  Ball,  3  Mer.  437  ("I  give  to  my  dear  wife,  Ann  Cotterel,  the  sum  of 
£500 ;  and  it  is  my  will  and  desire  that  my  said  wife,  Ann  Cotterel,  may  dispose  of 
the  same  amongst  her  relations,  as  she  by  will  may  think  proper  "). 

Walsh  V.  Wallinger,  2  Russ.  &  M.  78  (Devise  of  residue  "unto  his  said  wife,  to 
and  for  her  own  use  and  benefit  and  disposal,  trusting  that  she  would  thereout  pro- 
vide for  and  maintain  his  family,  and  particularly  his  eldest  son ;  and,  at  her  decease, 
give  and  bequeath  the  same  to  her  children  by  him,  in  such  manner  as  she  should 
appoint "). 

Blakeney  v.  Blakeney,  6  Sim.  52  (Residue  "to  my  sister,  A.  B.,  to  dispose  of 
amongst  her  children  as  she  may  think  proper"). 

Salusbury  v.  Denton,  3  K.  &  J.  529  ("The  remainder  of  said  moiety  to  he  at  her 
disposal  among  my  relations,  in  such  proportions  as  she  may  be  pleased  to  direct"). 

Gully  V.  Cregoe,  24  Beav.  185  (Devise  to  a  wife,  "for  her  own  sole  use  and  benefit 
forever,  feeling  assured  and  having  every  confidence  that  she  will  hereafter  dispose 
of  the  same  fairly,  justly,  and  etiuitably  amongst  my  two  daughters  and  their  chil- 
dren "). 

Shovelton  v.  Shovelton,  32  Beav.  143  (Bequest  of  residue  "unto  my  said  dear  wife, 
to  and  for  her  own  absolute  use  and  benefit,  in  the  fullest  confidence  that  she  will  dis- 
pose of  the  same  for  the  benefit  of  her  children,  according  to  the  best  exercise  of  her 
judgment,  and  as  family  circumstances  may  require  at  her  hands  "). 

Re  Eyre,  49  L.  T.  Rep.  259  (  "  To  A.  and  B.,  who  shall  hold  ...  as  A.  and  B.  shall 
in  their  absolute  discretion  .  .  .  appoint.  And  my  reason  for  giving  the  said  general 
power  of  appointment  to  A.  and  B.  is  that  I  have  the  fullest  confidence  in  them  that 
they  will  do  what  is  right  and  proper,  and  that  they  will  dispose  of  the  property  sub- 
ject to  said  power  justly  and  fairly,  and  as  they  think  it  ought  to  be  disposed  of  and 
divided  by  me."     A.  and  B.  also  received  legacies). 

Corbet  V.  Corbet,  Ir.  R.  7  Eq.  456  (Bequest  to  a  sister:  "And  I  beg  she  will  appor- 
tion between  the  above  named  [naming  four  nieces],  and,  as  my  nephew  J.  C.  has  a 
less  secure  position  in  life  than  his  brothers,  to  him  sucii  portion  or  portions  as  she 
shall  see  fit.  I  would  also  wish  that  she  should  have  power  to  give  some  small 
amounts  for  charity,  especially  to  D.  I.'s  family"). 

Bull  V.  Bull,  8  Conn.  47  (Residuary  bequest  to  A.  and  B.,  "with  full  confiilence 
.  .  .  that  they  will  dispose  of  such  residue  among  our  brothers  and  sisters  and  their 
children  as  they  shall  judge  shall  be  most  in  need  of  the  same;  this  to  be  done 
according  to  their  best  discretion"). 


SECT.  VI.]  IN  RE  DIGGLES.  101 

Blanchard  v.  Chapman,  22  111.  Ap.  341  ("And  having  and  reposing  implicit  confi- 
dence in  the  goodness  and  kindness  of  my  dear  wife,  I  rely  upon  her  to  make  .  .  . 
and  all  needful  provision  for  the  future  wants  of  my  brother  S."). 

Collins  V.  Carlisle,  7  B.  I\Ion.  13  (Residuary  bequest  "to  my  beloved  wife,  N.  C, 
and  to  be  disposed  of  by  her  and  divided  among  my  children  at  her  discretion  "). 

Noe  V.  Kern,  93  ^lo.  367  (Bequest  of  everything  to  a  husband,  "  in  the  full  faith 
that  he  will  properly  provide  for  the  two  children  of  my  deceased  brother  .  .  .  whom 
we  have  undertaken  to  raise  and  educate  "). 

Cox  V.  Wills,  X.  J.  Eq.  22  Atl.  R.  794  (Residue  to  wife,  "believing  that  she  will 
make  a  will,  and  thereby  distribute  so  much  .  .  .  among  my  near  relatives  as  she 
may  not  use  for  comfortable  maintenance;  and  it  is  my  will  that  my  said  wife  shall 
make  such  distribution"). 

Aldrich  v.  Aldrich,  12  R.  I.  141. 

Jarnagin  v.  Conway,  2  Humph.  50  (Devise  to  a  wife,  "with  power  to  dispose  of  the 
same  as  she  might  deem  proper  amongst  her  children  "). 

Anderson  v.  Cullough,  3  Head,  614  (Devise  to  a  wife,  "believing  that  she  will 
make  an  equitable  distribution  at  her  death  among  our  children"). 

Steele  v.  Levisay,  11  Grat.  454.     See  Reid  v.  Blackstone,  14  Grat.  363. 

In  Wace  v.  Mallard,  21  L.  J.  Ch.  355,  16  Jur.  492,  s.  c,  Sir  James  Parker,  V.  C, 
held  that  a  gift  of  everything  to  the  testator's  wife,  "to  and  for  her  sole  use  and  ben- 
efit, in  full  confidence  that  she,  my  said  wife,  will  in  every  respect  appropriate  and 
ai)ply  the  same  unto  and  for  the  benefit  of  all  my  children,"  created  a  life  estate  in 
the  widow,  with  a  mandatory  power  of  appointment  in  favor  of  the  children.  But 
see  observations  upon  this  case  in  1  Jarm.  Wills,  (5th  Am.  ed.)  688.  Much  reliance  was 
placed  upon  Wace  v.  Mallard  in  Curnick  v.  Tucker,  L.  K.  17  Eq.  320,  where  a  gift  of 
everything  to  testator's  wife,  "  for  her  sole  use  and  benefit,  in  the  full  confidence  that 
she  will  so  dispose  of  it  amongst  all  our  children,  both  during  her  lifetime  and  at  her 
decease,  doing  equal  justice  to  each  and  all  of  them,"  seemed  to  Sir  Charles  Hall,  V.  C, 
to  import  a  trust.  But  this  case,  as  well  as  Le  Marchant  i;.  Le  Marchant,  L.  R.  18 
Eq.  414,  before  Sir  R.  Malins,  V.  C.  (Gift  of  everything  to  testator's  wife,  "for  her 
sole  use  and  benefit,  in  the  full  confidence  that  slie  will  so  bestow  it  on  her  decease  to 
my  children  in  a  just,  true,  and  equitable  spirit,  and  in  such  manner  and  way  as  she 
feels  would  meet  with  my  full  approval"),  met  with  the  disapproval  of  Sir  George 
Jessel,  M.  R.,  in  Re  Hutchinson,  8  Ch.  D.  540. 

In  the  following  cases,  where  a  discretion  was  given  as  to  the  mode  of  distribution 
among  i)ers(ms  of  a  defined  class,  the  words  were  held  to  be  precatory,  and  therefore 
to  create  no  trust :  — 

Buggins  V.  Yates,  9  Mod.  122  (Testator  did  not  doubt  but  his  wife  would  be  kind  to 
his  children). 

Sale  V.  Moore,  1  Sim.  534  (Residuary  bequest  to  a  wife,  "recommending  to  her,  and 
not  doubting,  as  she  has  no  relations  of  her  own  family,  but  that  she  will  consider  my 
near  relations  .  ,  .  a.s  I  should  consider  them  "). 

Mereditli  v.  Heneage,  1  Sim.  542  ("  I  liavc  devi.sed  and  bequeathed  the  whole  of  my 
said  real  and  personal  estate,  hereinbefore  particularly  set  forth,  unto  my  said  dear 
wife, .  .  .  unffttfTfd  and  unlimited,  in  full  confidence  and  with  tlio  firniest  persuiusion 
tliat,  m  her  future  disposition  an<l  distrilMition  thereof,  she  will  distinguisli  the  lieirs  of 
my  late  fatlier,  by  devising  and  bcqueatliing  the  whole  of  my  sai<l  estate,  togellicr  and 
entire,  to  such  of  my  said  father's  heirs  as  she  may  think  best  deserves  her  prefer- 
ence").    See  to  the  same  effect  Ilcneago  v.  Andover,  10  I'rico,  2.33. 

Benson  v.  Whittam,  5  Sim.  22  ("  The  residue  of  said  dividends  to  my  brother, 
Arthur  Benson,  to  enaldo  him  to  a-ssist  such  of  the  diildren  of  my  decea.sed 
brother,  Francis  Benson,  as  ho  the  said  Arthur  Benson  shall  find  deserving  of 
encouragement"). 

Bardswcll  v.  Bardswell,  9  Sim.  319  (Bequest  of  everything  to  a  sf>n,  "  for  liis  own 
use  and  benefit,  well  knowing  ho  would  discharge  the  trust  the  testator  reposed  in 
him  by  remcinbering  the  testator's  sons  and  diiughters  "). 

Pope  V.  Pope,  10  Sim.  1  (Residuary  bequest  to  a  wife  :  "  And  my  rea.son  for  so  doing 


102  IN   RE   DIGGLES.  [CHAV.  L 

19  the  coustaut  abuse  of  trustees  which  I  daily  witness  among  men  ;  at  the  same  time 
trusting  slie  will,  from  the  love  she  bears  to  mo  and  her  dear  children,  so  husl)aud  and 
take  care  of  what  property  there  may  bo  for  their  good ;  and  should  she  marry  again, 
then  I  wish  she  may  convey  to  trustees  .  .  .  what  property  she  may  then  possess  for 
the  beucrit  of  the  ciiildreu  as  they  may  severally  need  or  deserve,  taking  justice  and 
affection  for  her  guide"). 

Knight  v.  Boughton,  11  CI.  &  Fin.  .513  ("  I  trust  to  the  justice  of  my  successors  in 
continuing  the  estates  in  the  male  succession,  according  to  the  will  of  the  founder  of 
the  family  "). 

Williams  v.  Williams,  1  Sim.  n.  s.  358  ("It  is  my  wish  that  you  [the  testator's  wife] 
should  enjoy  everytliing  in  my  power  to  give,  using  your  judgment  as  to  whom  to  dis- 
pose of  it  amongst  your  children  when  you  can  no  longer  enjoy  it  yourself ;  but  I  should 
be  unhappv  if  I  thought  it  possible  that  any  one,  not  of  your  family,  should  be  the  bet- 
ter for  what,  I  feel  confident,  you  will  so  well  direct  the  disposal  of "). 

Green  v.  Marsden,  1  Drew.  646  (Bequest  of  stock  to  a  wife:  "And  I  beg  and 
request  that  at  her  death  she  will  give  and  bequeatli  the  same,  in  such  shares  as  she 
shall  think  proper,  unto  such  members  of  her  own  family  as  she  shall  think  most  de- 
serving of  the  same  "). 

Johnston  v.  Rowlands,  2  DeG.  &  Sm.  356  ("As  to  the  sum  of  $2,000  ...  I  give 
the  same  to  my  said  wife,  to  be  di.sposed  of  by  her  will  in  such  way  as  she  shall  think 
proper  ;  but  I  recommend  her  to  dispose  of  one  half  thereof  to  her  own  relations,  and 
the  other  half  among  such  of  my  relations  as  she  shall  think  proper"). 

Brook  V.  Brook,  3  Sm.  &  G.  280  (Devise  to  testator's  niece,  M.  A.  B.,  "  to  be  her  sole 
and  separate  property,  .  .  .  and  with  power  ...  to  appoint  the  same  to  her  children 
and  her  husband  in  such  a  way  and  in  such  proportions  as  she  may  think  fit "). 

Alexander  v.  Alexander.  2  Jur.  n.  s.  898  ("  And  my  sons  in  law,  F.  H.  and  W.  S.  A., 
may  dispose  of  the  property  I  leave  for  the  good  of  their  families  "). 

Keeves  v.  Baker,  18  Beav.  372  ("The  residue  of  my  property  ...  to  my  beloved 
wife,  Mary  Reeves,  her  heirs  and  assigns  forever,  being  fully  .satisfied  that  .  .  .  she 
will  dispose  of  the  same,  by  will  or  otherwise,  in  a  fair  and  equitable  manner,  to  our 
united  relations,  bearing  in  mind  that  my  relations  are  generally  in  better  worldly 
circumstances  than  hers  are "). 

Howorth  V.  Dewell,  29  Beav.  18  (Residuary  bequest  to  a  wife,  "  with  power  for  her 
to  dispose  of  the  same  unto  and  among.st  all  of  my  children,  or  to  any  one  or  more  of 
them,  for  such  estate  or  estates,  either  in  fee  simple  or  in  tail,  term  of  life  or  other  in- 
terest, temporary  or  lasting,  ...  as  my  said  wife  shall,  in  her  discretion,  see  most 
fitting  and  proper"). 

Scott  V.  Key,  35  Beav.  291  ("The  balance  ...  to  go  to  my  dear  wife,  being  well 
assured  that  she  will  husband  the  means  that  may  be  left  to  her  by  me  with  every 
prudence  and  care,  for  the  sake  of  herself  and  any  children  that  I  may  leave 
by  her"). 

Jn  re  Pinckard's  Trust,  27  L.  J.  Ch.  422. 

In  re  Bond,  4  Ch.  D.  238  ( Residuary  bequest  to  a  wife,  "  And  for  my  dear  wife,  A.  B., 
to  do  justice  to  those  relations  on  my  side  such  as  she  may  think  worthy  of  remunera- 
tion, but  under  no  restriction  as  to  any  stated  property,  but  quite  at  liberty  to  give 
Hnd  distribute  what  and  to  who  my  dear  wife  may  please"). 

In  re  Hutchinson,  8  Ch.  D.  540  ("To  my  dear  wife,  H.  R.,  absolutely,  with  full 
■power  for  her  to  dispose  of  the  same  as  she  may  think  fit  for  the  benefit  of  my  family, 
having  full  confidence  that  she  will  do  so  "). 

Mnssoorie  Bank  v.  Rayner,  7  App.  Cas.  321  ("To  my  wife,  .  .  .  feeling  confident 
that  she  will  act  justly  to  our  children  in  dividing  the  same  when  no  longer  required 
by  her  "). 

lie  Adams  Vestry,  24  Ch.  D.  199,  27  Ch.  Div.  394  ("To  the  absolute  use  of  my 
wife,  ...  in  full  confidence  that  she  will  do  what  is  right  as  to  the  disposal  thereof 
between  my  children,  either  in  her  lifetime  or  by  will  after  her  decease  "). 

Creaghr.  Murphy,  7  Ir.  R.  Eq.  182;  Morrin  v.  Morrin,  L   R.  19  Ir.  37. 

Montreal  Bank  v.  Bower,  18  Ont.  226  (Absolute  gift  to  a  wife  ;  "  And  it  is  my  wish 
and  desire,  after  my  decease,  that  my  said  wife  shall  make  a  will  dividing  the  real  and 


SECT.  VI.]  IN  EE  DIGGLES.  103 

personal  estate  and  effects  hereby  devised  and  bequeathed  to  her  among  my  said  chil- 
dren in  such  mauner  as  she  shall  deem  just  and  equitable"). 

Gilbert  v.  Chapin,  19  Conn.  342  (Residuary  bequest  to  a  wife,  "  recommending  to 
her  to  give  the  same  to  my  children,  at  such  time  and  in  such  manner  as  she  shall 
think  best"). 

Lines  v.  Darden,  5  Fla.  51  (Bequest  to  a  daughter:  "My  will  and  desire  is  that 
such  grandson  so  arriving  at  the  age  of  twenty -one  years  .  .  .  shall  receive  a  portion 
of  the  estate  as  a  loan,  to  have  the  management  and  receive  the  benefit  of  the  same 
until  the  final  distribution  shall  take  place,  and  then  to  return  the  same  to  be  equally 
divided  with  the  rest  of  my  estate  "). 

Sale  V.  Thornberry,  86  Ky.  266  (Devise  to  a  wife  in  fee  simple :  "  I  only  make  this 
request  of  her,  and  only  as  a  request,  for  I  feel  that  her  own  kind  heart  and  good  judg- 
ment will  prompt  her  to  do  so  without,  viz.  :  that  in  the  event  she  should  marr}'  again 
she  will  see  that  the  interests  of  our  children  in  said  property  are  protected  "). 

Gibbins  v.  iShepard,  125  Mass.  541  (Bequest  to  a  wife  "  for  her  support  during  her 
lifetime,  and  leaving  it  as  an  injunction  on  her  to  divide  it  on  the  children  at  her  death, 
as  she  deems  best,  and  as  they  deserve  "). 

Sturgis  V.  Paine,  146  Mass.  354  (Residuary  devise  to  a  wife  "at  her  sole  use  and 
disposal.  .  .  .  My  said  wife  is  fully  acquainted  with  my  reasons  for  this  disposal  of 
my  estate,  and  will  by  her  own  last  testament  do  what  is  right  and  just  to  my  children 
and  their  natural  heirs  "). 

Foose  c.  Whitmore,  82  N.  Y.  405  ("All  my  property  to  my  wife,  only  requesting 
her  at  the  close  of  her  life  to  make  such  disposition  of  the  same  among  my  children 
and  grandchildren  as  shall  seem  to  her  good  "). 

He  IngersoU,  59  Hun,  571  (Bequest  of  SI, 000  to  A.  "  forever,  for  the  uses  and  pur- 
poses before  stated,  and  I  rely  upon  him  to  carry  out  the  wishes  and  purposes  that  I 
have  hereinbefore  indicated  "). 

Alston  r.  Lea,  6  Jones  Eq.  (N.  Ca.)  27  (Bequest  to  a  wife,  "  so  that  she  can  have  the 
right  to  give  it  to  our  six  children  as  she  may  think  best "). 

Re.  Pennock's  estate,  20  Pa.  268  (Bequest  to  a  wife  "  absolutely,  having  full  confi- 
dence that  she  will  leave  the  surplus  to  be  divided  at  her  decease  justly  among  my 
children  "). 

Kinter  v.  Jenks,  43  Pa.  445  (Residuary  bequest  to  a  wife,  "  for  her  use  and  comfort 
and  to  be  disposed  of  as  she  pleases  at  or  before  her  decease,  when,  no  doubt,  she  will 
make  such  diHtributi(jn  of  the  same  amongst  our  children  as  she  may  then  think  most 
proper").     See  Burt  v.  Ilerron,  66  I'a.  400. 

Bowlby  V.  Thunder,  105  Pa.  173  (To  a  wife,  "with  the  fullest  confidence  that  she 
will  carry  my  intentions  .  .  .  into  effect,  so  far  as,  in  her  opinion,  my  children  and 
grandchildren  .  .  .  may  prove  worthy  of  her  attention.  .  .  .  Memorandum  for  her, 
...  the  two  frame  hou-ses  N.  E.  corner  of  Lombard  and  10th  Streets,  to  the  children 
of  my  daugliter  Anne,"  etc.). 

Lcsesne  v.  Witte,  5  S.  Ca.  n.  8.  450  ("  I  devise  all  my  estate  to  my  beloved  wife, 
feeling  entire  confidence  that  she  will  use  it  judiciously  for  tin;  benefit  of  herself  and 
our  children  "). 

Rowland  v.  Rowland,  29  S.  Ca.  54  ("  I  desire  that  my  wife  shall  advance  to  such 
child  or  cliildrcn  such  an  amount,  either  in  property  or  money,  as  she  deems  prudent, 
but  not  exceeding  a  distributive  share  of  my  estate,  as  it  is  my  intention  for  my  wife 
to  keep  as  much  of  my  baUita  a.H  will  make  her  comfortable  "). 

Thomp.Hon  r.  McKisick,  3  Humph.  631  (Bequest  of  i)ropcrty  to  a  daughter.  "  to  be 
hers  forever,  to  be  di.spoHcd  of  a.H  she  may  think  proper  amongst  her  children  and 
grandchildren,  by  will  or  otherwise  "). 

See  Wright  v.  Atkyns,  Cooper,  121,  122;  T.  &  R.  143  ;  17  Vcs.  255  ;  19  Vcs.  299; 
1  V.  &B.  313;  Sugd.  Lawof  Prop.  376,  8.  c. ;  Van  Amee  y.  Jackson,  35  Vt.  173.  —  Eu. 


}  04  AIIEAKNE   V.   All  ERNE.  TCHAP.  L 


AHEARNE  V.   AHERNE. 

In  the  High  Court  of  Justice,  Ireland,  Chancery  Division,  before 
Sir  Edward  Sullivan,  M.  R.,  July  15,  1881. 

[Reported  in  Law  Reports,  9  Irish,  144.] 

The  Master  of  the  Rolls. ^  The  testator,  Thomas  Ahearne,  had 
two  children,  a  son  (the  plaintiff,  Thomas  M.  W.  Ahearne),  and  a 
daughter,  Isabella  Ahearne,  who  was  married.  He  made  his  will,  the 
parts  of  which  material  to  the  question  before  me  are  as  follows  :  — 
"I  devise  and  bequeath  to  my  said  son  and  to  my  daughter  the  farm 
called  Sunville,  situate  in  the  county  of  Cork,  with  all  the  stock  and 
cattle  thereon,  and  also  all  the  farm  utensils  and  other  plant  thereon, 
to  hold  to  them  share  and  share  alike."  He  also  bequeathed  to  the 
plaintiff  and  the  defendant  a  sum  of  £3,900  held  by  him  on  deposit 
receipt,  and  £252  to  his  credit  in  the  Provincial  Bank  ;  and  the  will 
contained  this  clause  :  "  My  will  is  that  the  bequests  to  my  said  daughter 
shall  be  for  her  sole  and  separate  use,  to  be  held  by  her  for  her  life,  with 
a  power  of  appointing  same  among  her  children." 

Thus,  he  first  devised  an  absolute  interest  to  his  son  and  his  daughter 
as  tenants  in  common  ;  and  if  he  had  stopped  there,  the  daughter  would 
have  taken  a  moiety  absolutely.  But,  apparently  with  a  view  to  cor- 
rect what  he  had  done,  and  to  point  to  something  else  which  he  had  in 
his  mind  of  a  different  character,  he  added  the  second  clause,  by  which 
he  declared  that  the  bequestxto  his  daughter  should  not  be  an  absolute 
bequest,  but  should  be  for  ner  life,  with  a  power  of  appointing  same 
amongst  her  children.  He  then  appointed  his  son  and  his  daughter 
residuary  legatees,  but  that  residuary  bequest  deals  only  with  pure 
personal  estate.  The  question  arises  whether  the  children  took  under 
the  will,  apart  from  the  discretion  of  their  mother,  or  whether  she 
could,  by  not  exercising  the  power,  exclude  them.  I  am  of  opinion 
that  she  could  not,  and  that  this  is  a  trust  for  the  children,  subject  to 
a  power  of  appointment  in  her. 

The  principle  upon  which  this  case  depends  is  thus  stated  by  Lord 
St.  Leonards  in  his  work  on  Powers,  8th  ed.,  p.  589  :  "The  question 
whether  a  power  is  simply  such,  or  a  power  in  the  nature  of  a  trust, 
commonly  arises  on  a  power  to  appoint  to  a  man's  children  or  relations. 
In  Brown  v.  Higgs,'  Lord  Eldon  stated  the  principle  of  all  the  cases 
on  this  subject  to  be,  that  if  the  power  is  a  power  which  it  is  the  duty 
of  the  party  to  execute,  made  his  duty  by  the  requisition  of  the  will, 
put  upon  him  as  such  by  the  testator,  tcho  has  given  him  an  interest 
extensive  enough  to  enable  him  to  discharge  it^  he  is  a  trustee  for  the 
exercise  of  the  power,  and  not  as  having  a  discretion  whether  he  will 

1  See  supra,  p  70  n.  1.  —  Ed.  *  8  Ves.  574. 


SECT.  YI.]  AHEARNE  V.   AHERNE.  105 

exercise  it  or  not ;  and  the  Court  adopts  the  principle  as  to  trusts,  and 
n-ill  not  permit  his  negligence,  accident,  or  other  circumstances,  to 
disappoint  the  interests  of  those  for  whose  benefit  he  is  called  upon 
to  execute  it."  And  in  §  9  he  states  "  In  all  these  cases,  although 
in  terms  no  obligation  was  imposed  on  the  donee  to  exercise  the  power, 
and  althoush  in  some  he  had  a  discretion  to  select  from  the  class  the 
individuals  to  take,  yet  as  the  property  was  given  to  him  generally  i 
with  such  a  power, -and  his  own  interest  was  confined  to  his  life  by 
plain  construction,  an  intention  was  collected  that  the  interest  beyond 
his  own  life  was  to  vest  in  the  objects,  and  that  he  having  a  sufficient 
estate  for  that  purpose,  and  a  power,  was  bound  to  give  effect  to  that 
intention  ;  and  his  neglect  to  exercise  his  discretion,  or  to  execute  his 
power  among  the  objects  —  where  none  was  to  be  excluded  —  was  not 
permitted  to  operate  to  the  detriment  of  the  cestuis  que  trust."  In  my 
opinion,  that  is  the  exact  case  before  me.  The  will  gives  the  donee  of 
tlie  power  an  estate  amply  sufficient  to  discharge  the  trust,  and  plainly 
cuts  down  her  interest  to  a  life  interest.  The  words  are  remarkable  : 
"  ]My  will  is  that  the  be(iuests  to  my  said  daughter,  Isabella  Aherne, 
shall  be  for  her  sole  and  separate  use,  to  be  held  by  her  for  her  life, 
with  a  power  of  appointing  same  amongst  her  children." 

It  is  said  that  Healy  v.  Donuery  '  is  an  authority  against  thjs  view. 
It  is  sudicient  to  mention  tlie  names  of  the  judges  (Baron  Penuefuther 
and  Baron  Greene)  wiio  decided  tliat  case,  to  satisfy  everybody  that 
nothing  could  be  further  from  my  mind  than  to  overrule  tliem.  That 
case  does  not  appear  to  me  to  be  applicable  to  tliis.  It  fails  in  a  most 
material  circumstance;  no  estate  was  given  to  the  donee  of  the  power 
in  the  first  instance,  altliough  Baron  Greene,  in  a  doubtful  passage  of 
his  judgment,  is  reported  to  have  said  that  there  was.  The  will  in 
that  case  was  in  these  words :  "  I  leave,  devise,  and  bequeath  unto  my 
said  daughter,  Margaret  Iloaly,  all  my  frceliold  interest  in  Nortli  King 
Street,  in  the  city  of  Dublin,  upon  trust  to  receive  the  rents,  &.c. 
tliereof  for  and  during  the  term  of  iii^r  natural  life,  for  her  sole  use, 
notwithstanding  her  coverture,  witliout  the  control  of  her  present  or 
any  future  husband,  «fec.,  with  jiower  to  my  said  daughter  by  any  deed 
or  will  to  dispose  of,  devise,  or  bcqueatli  the  said  freehold  estate  to  and 
among  her  children,  in  such  siiares  and  proportions  as  she  shall  tliink 
fit  and  projjer."  That  is  not  tlie  case  Itefore  me  of  an  absolute  estata 
given  to  the  donee  in  tlie  first  instance,  cut  down  to  a  life  estate  by 
the  subsequent  words.  Lord  Komilly,  in  Iloworth  v.  Dowell,*  points 
out  the  distinction  Ix'tween  the  case  of  an  al)solute  interest  given  in 
the  fust  instance,  with  a  superad<led  power  and  the  case  of  a  life 
interest  and  a  mere  power  to  api)oint.  He  says:  "  I  think  this  is  an  , 
absolute  gift  in  the  first  instance  ;  that  the  testator  gave  all  his  real  » 
and  personal  estate  to  his  wife,  with  a  superadd(,-d  power  to  dispose  of 
the  same  among  c-crtain  pf-rsons.  I  am  of  opinion  ih;it  he  mc;iiit  lo 
suggest  to  her  how  slie  might  dispose  of  it  at  any  time  afterwards; 

1  3  Ir.  C.  L.  R.  213.  *  29  Bcav.  19, 


lOG  AHEARNE   V.   AIIERNE.  [CHAP.  I. 

but  it  docs  not  nmoimt  to  a  precatory  trust,  or  cut  down  the  previous 
absolute  iutorost.  It  is  quite  distinct  from  all  tliose  cases  in  which 
there  were  gifts  for  life  with  a  superadded  power.  This  is  an  absolute 
interest  with  a  superadded  power,  which,  in  my  opinion,  does  not  cut 
down  the  absolute  interest."  And  Lord  St.  Leonards,  in  referring  to 
Healv  V,  Donnery,^  treats  it  as  having  been  decided  on  the  ground 
that  only  a  life  estate  was  given  in  the  first  instance,  as  in  the  case  of 
Brook  V.  Brook.^ 

I  am,  therefore,  of  opinion  that  the  case  of  Burrough  v.  Philcox,^  in 
■which  Lord  Cottenham  followed  Brown  v.  Higgs,''  rules  this  case. 

Lord  Cottenham  says,^  "  In  this  case  the  intention  is  not  to  Le 
found  only  in  the  power  given  to  select  and  distribute,  for  the  testator 
has  directed  his  trustees  to  hold  the  property  until  the  contingency  has 
happened ;  and  as  to  the  land,  that  it  shall  not  be  alienated  in  the 
mean  time,  and  has  himself  declared  that,  in  the  events  which  have 
happened,  the  property  should  be  disposed  of  as  after  mentioned. 
This  is  imperative,  and  is  conclusive  as  to  the  intention  that  the 
subsequent  gift  should  take  effect." 

I  rule  that  the  daughter  takes  for  life,  with  a  power  of  appointment 
among  her  children,  and  that  in  default  of  appointment  the  property 
goes  equally  among  the  children.^  The  costs  must  be  paid  out  of  the 
estate. 

'       1  3  Ir.  C.  L.  R.  213.  2  3  gm.  &  Gif.  280. 

3  5  M.  &  Cr.  94.  *  4  Ves.  708 ;  8  Ves.  574. 

6  Griffith  V.  Evans,  5  Beav.  241  ;  Butler  v.  Gray,  5  Ch.  26 ;  Dominick  v.  Sayre,  3 
Sandf.  555  Accord. 

Crossling  v.  Crossling,  2  Cox,  396,  and  Duke  of  Marlborough  ?;.  Godolphin,  2  Ves. 
61,  contra,  are  no  longer  to  be  relied  upon.  See  Burrough  v.  Philcox,  5  M.  &  Cr.  73; 
1  Jarman,  Wills,  (4th  ed.)  551,  n.  (k). 

Compare  Reid  v.  Atkinson,  Ir.  R.  5  Eq.  373,  supra,  p.  94. 

"  But  there  is  no  case  where  the  gift  of  a  mere  power  superadded  to  the  fee  simple 
has  been  held  to  create  a  trust  in  favor  of  particular  objects  and  to  cut  down  the  abso- 
lute gift,  unless  on  expressions  sufficiently  strong  and  clear  to  amount  to  a  devise  on 
trust  in  favor  of  the  objects  of  the  power."  Brook  v.  Brook,  3  Sm.  &  G.  280,  282 ;  How- 
orth  V.  Dewell,  29  Beav.  18;  Healy  v.  Donnery,  3  Ir.  C.  L.  R.  213;  1  Jarman,  Wills, 
(4th  ed.)  387,  n.  (w).     But  see,  contra,  Jarnagin  v.  Crawley,  2  Humph.  50.  —  Ed. 


SECT.  VU.]  DOCTOR  AIsD   STUDENT.  107 


SECTION  vn. 

Consideration. 

DOCTOR  AND   STUDENT. 

Dialogue  II,,  Chapters  22,  23. 

1523. 

Doctor.  May  not  a  Use  be  assigned  to  a  Stranger,  as  well  as  to 
be  reserved  to  the  Feoffor,  if  the  Feoffor  so  appointed  it  upon  his 
Feoffment? 

Student.  Yes,  as  well,  and  in  like  wise  to  the  Feoffee,  and  that 
upon  a  free  Gift,  without  any  Bargain  or  Reeompence,  if  the  Feoffor 
so  will. 

Doct.  What  if  no  Feoffment  be  made,  but  that  a  Man  grant  to  his 
Feoffee,  that  from  henceforth  he  shall  stand  seised  to  his  own  use? 
Is  not  that  Use  changed,  though  there  be  no  Reeompence? 

Stud.  I  think  yes,  for  there  was  an  Use  in  esse  before  the  Gift, 
which  he  might  as  lawfully  give  away,  as  he  might  the  Land  if  he  had 
it  in  possession.^ 

Doct.  And  what  if  a  Man  being  seised  of  Land  in  Fee,  grant  to 
another  of  his  mere  motion  without  Bargain  or  Reeompence,  that  he 
from  thenceforth  shall  be  seised  to  the  Use  of  the  other ;  is  not  that 
Grant  good? 

Stud.  I  suppose  that  it  is  not  good  ;  for,  as  I  take  the  Law,  a  INIan 
cannot  commence  an  Use  but  by  Livery  of  Seisin,  or  upon  a  Bargain, 
as  [or?]  some  other  Reeompence. 


Stud.  And  as  I  said  in  the  last  Chapter,  as  I  suppose,  a  nude  or 
bare  Grant  of  him  that  is  seised  of  Land  is  not  eullioient  to  begin  an 
Use  upon.  .  .  . 

Doct.  A  bare  Cirant  may  change  an  Use,  as  thou  thyself  agreed  in 
the  last  Chapter :  why  then  may  not  an  Use  as  well  begin  upon  a 
bare  Grant? 

>  "  I  say  there  is  no  doubt  hnt  that  if  T  sell  yon  my  use,  the  use  is  changed  from 
my  pfTHon  to  you  :  ho  I  uriilcrHtiitid  that  if  I  nay  to  you,  '  I  give  you  my  use  in  certain 
lands,'  you  have  the  use  hy  surh  words  ;  for  the  use  does  not  jkiss  a.'^  tiio  land  docs; 
for  laud  cannrit  pass  excei)t  hy  livery,  hut  a  use  pjisses  by  bare  words."  —  I'er  York, 
Y.  B.  27  IT.  VIII.  fol.  8,  pi.  22. 

"  Cfislui  f/ite  tisr  may  grant  his  use  without  considoration,  as  lie  may  his  horse  or 
other  chattell ;  hut  he  cannot  raise  a  use  without  good  consideration.  And  this  con- 
sideration must  hee  some  cause  or  occasion  nu^ritorioiis,  aniounting  to  a  mutuall  ree- 
ompence iu  deed  or  in  law."    Piuch,  L.iw  (ed.  1030),  34.  —  Ku. 


103  NOTE.  roU\P.  L 

Stud.  VfiiQU.  a  Use  is  in  esse,  ho  that  hath  the  Use  may  of  his  mere 
motion  give  it  away,  if  he  will,  without  Recouipeuce,  as  he  might  the 
Laud,  if  he  had  it  iu  Possession  ;  but  I  take  it  for  a  Ground,  that  he 
cannot  so  begin  a  Use  without  Livery  of  Seisin,  or  upon  a  Kecom- 
pence  or  Bargain. 


NOTE. 
1535. 

[Reported  in  1  Anderson,  37,  placitum  95.1] 

Note  by  all  the  justices,  that  if  one  without  any  consideration  en- 
feoffs another  by  deed  to  have  and  to  hold  the  land  to  the  feoffee  and 
his  heirs  to  his  own  use,  [and]  the  feoffee  suffers  the  feoffor  to  occupy 
the  land  for  divers  years,  still  the  right  is  in  the  feoffee  because 
there  is  an  express  use  contained  in  the  deed,  which  is  enough  without 
other  consideration  ;  the  law  is  the  same  when  the  feoffment  is  to  the 
use  of  a  stranger  and  his  heirs.^ 

1  Benl.  27,  pi.  Ill,  s.  c  — Ed. 

2  Calthrop's  Case,  Moore,  101,  pi.  247;  Stephenson  v.  Layton,  Owen,  40;  1  Leon. 
138,  pi.  188,  s.  c. ;  Mildmay's  Case,  1  Kep.  176,  b;  Jefferys  v.  Jefferys,  Cr.  &  Ph.  138  ; 
Scales  V.  Maude,  6  D.  M.  &  G.  43,  52;  Peckham  v.  Taylor,  31  Beav.  250;  Arthur  v. 
Clarkson,  35  Beav.  458;  Petty  v.  Petty,  22  L.  J.  Ch.  1065;  Langley  v.  Thomas,  26 
L.  J.  Ch.  609 ;  Re  Richards,  36  Ch.  D.  541 ;  Brown  v.  Cavendish,  1  J.  &  Lat.  606,  637  ; 
Sledge  V.  Clopton,  6  Ala.  589;  Andrews  v.  Hobson,  23  Ala.  219;  Hill  v.  Den,  54  Cal. 
6;  Gotten  v.  Blocker,  6  Fla.  1,  8  (semhle) ;  Gordon  v.  Green,  10  Ga.  534,  544;  Davis 
V.  Moody,  15  Ga.  175  (semble);  Massey  v.  Huntington,  118  111.  80;  Lynn  v.  Lynn, 
135  111.  18;  Wyble  v.  McPheeters,  53  Ind.  393  ,  Gaylord  v.  Lafayette,  115  Ind.  423, 
429 ;  Ewing  v.  Jones  (Ind.,  1892),  29  N.  E.  R.  1057  ;  Haxton  v.  Mc'ciaren  (Ind.,  1892), 
31  N.  E.  R.  48 ;  Sherwood  v.  Andrews,  2  All.  79;  Sewall  v.  Roberts,  115  Mass.  262  ; 
Von  Hesse  v.  MacKaye,  62  Hun,  458;  Wadd  i'.  Hazleton  (1892),  17  N.  Y.  Sup.  410; 
Baker  v.  Evans,  Winst.  Eq.  109;  Pittman  v.  Pittman,  107  N.  Ca.  159,  163;  Black- 
burn V.  Blackburn,  109  N.  Ca.  488;  Dennison  u.  Goehring,  7  Barr,  175;  Cress- 
man's  App  ,  42  Pa.  147 ;  Fellow's  App  ,  93  Pa.  470 ;  Stone  v.  King,  7  R.  I.  358 ;  Henson 
V.  Kinard,  3  Strob.  Eq.  371 ;  Sargent  v.  Baldwin,  60  Vt.  17 ;  Ilardman  v.  Orr,  5  W.  Va. 
71  Accord. 

"  When  the  estate  was  by  legal  conveyance  transferred  to  a  person  to  uses,  equity 
made  no  scruple  in  enforcing  the  trustee  to  observe  the  uses.  The  estate  being  ac- 
tually divested  out  of  the  owner,  it  was  not  necessary  to  exercise  the  power  of  the 
court  over  him,  and  as  the  feoffee,  &c.  was  a  mere  trustee,  he  was  considered  bound 
under  all  circumstances  to  observe  the  will  of  his  donor,  although  the  uses  were 
unsupported  by  any  consideration.  Therefore  a  feoffment  to  A.  to  the  use  of  B., 
a  mere  friend  of  the  feoffor's,  who  paid  no  consideration  whatever  for  the  estate, 
was  binding,  and  A.  was  compellable  to  permit  B.  to  receive  the  profits."  Sugd. 
Gilb.,  Introd.,  45.  —  Ed. 


SECT.  VII.1  SHAKINGTON   V.   STKOTTON.  109 


ANONYMOUS. 

,  1545. 

[Reported  in  Brooke's  Abridgment,  Feoffments  al  Uses,  pi.  54,  March's  Translation,  95.] 

A  MAN  cannot  sell  land  to  I.  S.  to  the  use  of  the  vendor,  nor  let  land 
to  him  rendring  rent,  hahend.  to  the  use  of  the  lessor,  for  this  is  con- 
trary to  law  and  reason,  for  he  hath  recompence  for  it :  and  by  Hales, 
a  man  cannot  change  a  use  by  a  covenant  which  is  executed  before,  as 
to  covenant  to  bee  seised  to  the  use  of  W.  S.  because  that  "Wo  S.  is  his 
fosin ;  or  because  that  W.  S.  before  gave  to  him  twenty  pound,  ex- 
cept the  twenty  pound  was  given  to  have  the  same  land.^  But  other- 
wise of  a  consideration,  present  or  future,  for  the  same  purpose,  as 
for  one  hundred  pounds  paid  for  the  land  tempore  conventionis,  or  to 
bee  paid  at  a  future  day,  or  for  to  marry  his  daughter,  or  the  like.^ 


HENRY  SIIARINGTON  and  GABRTEL  PLEDALL  v.  THOMAS 

STROTTON  AND  Others. 

In  the  Queen's  Bench,  Michaelmas  Tekm,  156a» 

[Reported  in  Plowden,  298.] 

Trespass  quare  clausumf regit.  The  defendants  justified  as  servants 
of  Edward  and  Agnes  Baynton,  whose  title  was  founded  upon  an  in- 
denture between  Edward  and  his  brother  Andrew  Baynton,  whereby 
Andrew,  being  seised  of  tlie  close  in  question,  by  an  indenture  reciting 
his  intent  that  the  land  might  continue  and  remain  to  such  of  the  blood 
and  name  of  Baynton  as  in  the  indenture  should  be  named,  for  thd 
.said  cause,  and  for  the  good  will,  brotherly  love,  and  favor  wiiich  he  bore 
to  Edward  his  brotlior  and  liis  otlier  l)rothers  named,  covenanted  and 
granted  that  he  and  his  heirs  shouUl  stand  seised  thereof  to  tlie  use  of 

*  "  Tnmrn  plnrr-s  rontra  mm  tempore  y[.  T.  [15531,  and  thiit  tliis  iiiny  lio  good  for 
ooiiHidr-nitioii  pjist."  Hrooko's  note  to  his  abridgment  of  tliis  case.  Tiie  case  referred 
to  by  Brooke  is,  donhtloBH,  Ijainton'a  Case,  I)y.  96. 

i  Ward  V.  Laml.crt,  Cro.  Kl.  .'!;»4 ;  2  Koll.  Abr.  783  (II.),  pi.  7;  22  Vin.  Abr.  Uses 
(H.),  ])1.  7,  n.  0.;  U»born  v.  Bradsliaw,  Cro.  .lac.  127  ;  Crossing  v.  Scndamon>,  1  \'cnt. 
137  Accord. 

"  In  a  special  verdict  in  agreoninnt,  the  only  point  was,  whothor  a  lease  for  a  year, 
made  upon  no  other  consideration  tiian  tlie  reserviition  of  a  ])ep|)<>r-corn,  shall  operate 
&n  a  bargain  and  sale,  ami  make  the  lessee  capable  to  take  a  release?  El  per  Curiam, 
it  shall,  for  the  reservation  of  a  pcpper-cf)rn  is  a  sulTirient  consideration  to  raise  aa 
nae."     3  Salk.  387 ;  2  Veut.  35 ;  2  Mod.  249,  8.  c.  —  Eo. 


110  SHARINGTON  V.   STROTTON.  [ciIAr.  L 

himself  for  life,  and  after  liis  death  to  the  use  of  Edward  and  Agnes  his 
wife  for  their  lives,  with  divers  remainders  over.  Andrew  died.  Edwiird 
and  Agnes  claimed  as  legal  tenants  for  life  under  the  indenture  and  the 
Statute  of  Uses.     The  plaintiffs  demurred  upon  the  defendant's  plea. 

J^/eeticood -Mid  Wrai/,  for  the  plaintiffs,  said  that  the  matter  of  the 
bar  was  insullicient,  and  that  there  was  no  use  here  made  by  this  in- 
denture, nor  was  any  possession  conveyed  to  the  said  Edward  Baynton 
and  Agnes  bj'  the  Statute  of  Uses  upon  this  covenant  and  agreement 
by  the  indenture.  For  the}'  said,  first  it  is  to  be  considered  that  An- 
drew Baynton,  at  the  time  of  making  the  indenture,  was  seised  of  tlic 
said  manor  in  fee  simple,  clear  of  all  estates  and  interests  of  any 
stranger  therein,  and  if  he  intended  to  make  a  stranger  have  a  use  in 
it,  he  ought  to  have  taken  one  of  these  two  wa3S  to  raise  such  use. 
The  one  is,  to  part  with  the  possession,  by  the  circumstances  required 
b}-  the  common  law,  to  the  use  intended,  as  to  make  a  feoffment,  to 
levy  a  fine,  or  to  suffer  a  recovery  of  the  land  to  the  use  intended ;  and 
this  way  the  common  law  is  satisfied,  as  well  as  the  party  also  who 
has  the  use,  for  the  circumstances  of  the  common  law  are  pursued,  and 
the  use  is  no  more  than  a  confidence  annexed  to  the  estate  which  the 
person  parts  with,  and  when  he  parts  with  the  estate  by  his  own  con- 
sent, he  ma}'  make  it  upon  confidence,  and  this  way  the  use  is  properly 
made.  The  other  way  is,  to  keep  the  land  in  his  hands  without  parting 
■with  it,  and  3'et  to  do  such  a  thing  as  shall  make  the  possession  to  be 
to  the  use  of  another,  and  that  cannot  be  unless  the  thing  done  imports 
in  itself  a  good  and  sufficient  consideration  to  make  the  possession  be 
to  the  use  of  another,  which  shall  he  upon  a  contract,  or  upon  a  cove- 
nant or  grant  on  consideration.  As  if  a  man  is  seised  of  land  in  fee, 
and  bargains  and  sells  the  land  to  another  in  consideration  of  a  certain 
sum  paid  to  him,  or  agreed  to  be  paid  at  a  certain  day,  here  is  a  con- 
tract, and  the  bargainor  shall  be  seised  to  the  use  of  the  bargainee 
by  the  course  of  the  common  law,  because  he  has  done  an  act  upon 
consideration,  that  is,  he  has  bargained  the  land  for  mone}' ;  and  inas- 
much as  he  hath  the  mone}',  or  securit}'  for  it,  it  is  reasonable  that  the 
bargainee  should  have  something  for  it,  and  the  land  he  cannot  have  as 
his  own,  because  he  had  not  livery  of  seisin,  and  therefore  reason  has 
necessarily  vested  the  use  in  him,  which  is  but  a  right  in  conscience  to 
have  the  profits,  and  to  have  the  land  ordered  according  to  his  will ; 
and  if  the  bargainor  will  not  permit  him  so  to  have  it,  reason  vests  in 
the  bargainee  a  title  to  compel  him  by  the  Judge  of  conscience  to  do  it. 
So  is  it  in  the  case  of  a  covenant  upon  consideration,  as  if  I  promise 
and  agree  with  another  that,  if  he  will  marry  ray  daughter,  he  shall 
have  m\-  land  from  thenceforth,  and  he  does  so,  there  he  shall  have  a 
use  in  m}-  land,  and  I  shall  be  seised  to  his  use,  because  a  thing  is  done 
whercb}'  I  have  benefit ;  viz.  the  other  has  married  my  daughter,  whose 
advancement  in  the  world  is  a  satisfaction  and   comfort  to  me,  and 

^  The  author's  statement  of  the  case  has  been  much  aliridged ;  the  greater  part  of 
the  defendants'  argument  and  the  marginal  notes  are  also  omitted.  —  Ed. 


SECT.  VII.]  SHARINGTON  V.   STROTTON.  Ill 

therefore  this  is  a  good  consideration  to  make  him  have  a  use  in  my 
land.     So  that  a  good  consideration  is  always  requisite  to  create  a  use 
de  novo  in  the  land  of  another,  where  there  is  uo  transmutation  of  the 
possession  of  the  land.     Then  in  our  case  here,  inasmuch  as  Andrew 
Baynton  was  seised  of  the  land  in  fee  simple,  and  intended  to  raise 
uses  in  it  without  any  transmutation  of  the  possession,  which  he  cannot 
do  by  the  course  of  the  common  law,  unless  the  circumstances  pursued 
in  the  raising  of  such  uses  import  a  good  and  sufficient  consideration 
to  support  the  same,  for  this  reason  we  ought  to  weigh  the  considera- 
tions here,   and  see  what  substance  they  have  in  the  law.     And  the 
causes  contained  in  the  indenture  are  three  ;  first,  a  desire  which  he  had 
that  the  lands  might  come,  remain,  and  descend  to  the  heirs  males  of 
his  bod}-  limited  in  the  indenture  ;  secondly,  his  intent  that  the  lands 
should  continue  and  remain  to  such  of  the  blood  and  name  of  Baynton 
as  are  named  in  the  indenture  ;  tliirdlv,  the  good  will  and  brotherly 
love  and  favor  which  he  bore  to  his  brother  Edwaixl  Baynton,  and  to 
his  other  brothers.     And  these  are  all  the  considerations  for  the  matter 
in  the  rehearsal,  viz.  that  the  said  Andrew  had  no  issue  male,  and  that 
he  was   determined  and  resolved  how  his  manors  and  lands  should 
remain  and  be  as  well  in  his  lifetime  as  after  his  deatli,  is  no  considera- 
tion at  all,  but  the  want  of  issue  male  is  the  cause  tliat  moved  him  to 
vesolve,  and  the  resolution  is  but  a  demonstration  of  his   mind,  and 
none  of  them  is  an\'  consideration,  for  the  considerations  are  the  three 
before  mentioned.     And  as  to  the  first,  viz.  his  desire  that  the  lands 
might  come  to  the  heirs  males  of  his  bod}-,  this  does  not  seem  to  be 
anv  consideration  to  the  father,  for  the  father  has  no  gain  or  advantage 
by  it,  but  tlie  heirs  males  of  his  body.     And  the  consideration  ought 
to  be  to  hiin  that  is  seised  of  the  land,  for  if  he  has  no  recompense 
there  is  no  cause  wh}'  the  use  of  his  land  should  pass.     And  none  of 
the  considerations  contain  a  recompense  here,  for  the  continuance  of 
the  land  in  his  blood  and  name  of  Bajnton  is  no  recompense  to  him, 
nor  cause  worthy  to  raise  a  use  ;  no  more  is  the  brotherly  love  and 
favor  wliich  he  bore  to  Edward  Baynton,  or  to  his  other  brothers,  for 
although  these  causes  induce  affection,  yet  every  affection  is  not  a  suffi- 
cient cause  to  alter  the  use.     For  if  a  man  grants  to  J.  S.  that  in  con- 
sideration of  tlicir  long  acquaintance,  or  of  tiieir  great  familiarilv,  or 
of  tiieir  being  scholars  together  in  their  youth,  or  upon  such  like  con- 
siderations, he  will  stand  seised  of  his  land  to  his  use,  this  will  not 
change  the  use,  for  such  considerations  are  not  looked  upon  in  the  law 
as  worth}'  to  raise  a  use,  l)ecause  thoy  don't  itnport  any  value  or  recom- 
pense.    For  if  u[)on  consideration  that  you  are  my  familiar  friend  or 
acquaintance,  or  my  brother,  I  promise  to  pay  you  £20,  at  such  a  day, 
you  shall  not  have  an  action  upon  the  case,  or  an  action  of  debt  for  it, 
for  it  is  but  a  nude  and  barren  contract,  et  er  nxido  pacto  nan  oritur 
actio,  and  there  is  no  sufficient  cause  for  the  payment,  nor  is  fin\lhing 
done  or  given  on  the  one  i)art,  for  yon  were  my  lirother  or  my  ac(ju:iiiitr 
ance  before,  and  so  will  you  be  afterwards ;  so  that  nothing  is  newly 


112  SIIAUINGTON   V.   STROTTON.  [CHAP.  L 

done  on  the  one  part,  as  is  requisite  in  contracts,  and  also  in  covenants 
ui)on  consideration.  As  if  I  sell  my  horse  to  you  for  money  or  other 
rccompor.se,  here  is  a  thing  given  on  both  sides,  for  the  one  gives  the 
horse,  and  the  other  the  money,  or  other  recompense,  and  therefore  it 
is  a  good  contract.  So  is  it  in  the  case  of  a  covenant  upon  considera- 
tion, as  if  I  covenant  with  you,  that  if  you  will  marry  my  daugliter  you 
shall  have  my  land,  or  I  shall  bo  seised  to  your  use  ;  here  is  an  act  on 
both  parts,  for  you  are  to  marry  my  daughter,  and  for  that  I  giant  to 
you  the  use :  so  that  there  is  an  act  done,  and  a  cause  arising  newly 
on  each  part.  But  in  the  principal  case  there  is  no  such  thing,  for 
the  issue  male  of  Andrew  Baynton  should  have  been  his  issue  male, 
and  his  name  and  blood  should  have  been  his  name  and  blood,  and  his 
brothers  should  have  been  his  brothers,  and  fraternal  love  should  have 
been  between  them,  if  this  covenant  or  grant  had  not  been  made,  so 
that  all  this  was  before  the  indenture  or  covenant,  and  should  have 
been  after  the  time  of  the  indenture  or  covenant,  if  the  same  had  not 
been  made.  Wherefore  no  new  thing  is  here  done  or  caused  bj-  the 
one  side,  and  there  is  no  cause  here  but  what  would  have  been  if  no 
such  covenant  or  indenture  had  been  made.  But  the  common  law  re- 
quires that  there  should  be  a  new  cause,  whereof  the  country'  may  have 
intelligence  or  knowledge  for  the  trial  of  it,  if  need  be,  so  that  it  is 
necessary  for  the  public  weal.  For  liverj'  of  seisin  was  first  invented 
as  an  act  of  notoriet}",  whereb}^  people  might  have  knowledge  of  estates, 
and  be  more  al)le  to  try  them,  if  they  should  be  empanelled  on  a  jury  ; 
and  by  tlie  like  reason  when  a  use  shall  pass,  there  ouglit  to  be,  b}'  the 
common  law,  a  contract,  or  a  public  and  notorious  consideration  to  a 
covenant,  which  may  cause  the  country  to  have  knowledge  of  the  use 
for  the  better  trial  thereof,  if  it  should  be  necessary.  And  such  was 
the  intention  of  the  Parliament  in  27  Henry  VIII.  when  they  made  the 
Act  that  the  possession  should  be  where  the  use  was,  one  of  the  great 
causes  of  making  which  Act  was  to  remove  ignorance,  and  that  the 
country  might  know  in  whom  the  estate  of  the  land  was.  And  the  like 
consideration  they  had  in  making  the  Act  of  Enrolments,  which  re- 
strains estates  of  freehold  from  passing  by  bargain  and  sale,  except  it 
be  by  writing  indented  enrolled  within  six  montiis.  And  if  uses  might 
be  so  easily  raised  bj'  covenants  upon  such  considerations  as  these 
here  are,  where  no  act  or  thing  apparent  is  done  whereof  the  country 
may  have  notice,  it  would  destroy  the  effect  of  the  said  Statute  of 
Uses,  and  would  be  pernicious  to  the  public  weal,  and  make  it  very 
difficult  for  the  people  to  know  who  were  the  owners  of  lands  and 
tenements.  And  it  is  to  be  presumed  that  the  makei-s  of  the  said  Act 
of  Enrolments  did  not  take  the  common  law  to  l)e  so,  for  if  they  had 
they  would  have  remedied  it  in  this  case,  as  well  as  they  did  in  the 
case  of  a  ])argain  and  sale,  which  is  much  more  notorious  than  a  cove-' 
nant  upon  such  secret  consideration,  where  no  apparent  act  or  thing' is 
done  to  inform  the  country  of  the  alteration  of  the  estate  in  the  land ; 
and  forasmuch  as  they  did  not  add  any  remedy  to  it,  it  is  an  argument 


SECT.  VII.]  SHARI^■GTOX   V.    STKOTTON.  113 

that  they  did  not  take  the  law  to  be  that  uses  might  pass  upon  such 
covenauts  wiihoiit  notorious  considerations.  But  if  the  use  had  been 
in  esse,  it  might  well  enough  have  passed  to  a  stranger  by  the  grant  of 
cestui  que  use  without  an}'  consideration  ;  for  the  cestui  que  use  may  as 
■well  give  or  graut  his  use  witliout  consideration,  as  he  may  his  horse 
or  other  chattel,  and  he  may  also  devise  it,  but  to  create  it  de  novo  out 
of  lands  cannot  be  done  without  good  consideration.  And  to  this  pur- 
pose they  alleged  the  opinions  of  Read  and  Tremail,  two  of  the  Justices 
of  the  King's  Bench,  in  the  case  of  an  office  traversed  in  21  Henry  VII. 
and  the  case  there  put  b}-  Read,  fol.  19,  was  also  cited,  viz.  it  was  cov- 
enanted by  indenture  between  Sir  John  Mordant  and  his  wife,  and  one 
T.  that  the  said  T.  should  have  the  land  to  him  and  to  his  heirs  of  his 
body,  and  that  for  default  of  such  issue,  the  lands  should  remain  to  Sir 
John  Mordant  and  his  wife  in  fee,  and  it  was  adjudged  that  he  should 
not  have  any  use  b}-  force  of  the  indenture,  as  it  is  there  rehearsed  by 
Read,  but  they  were  put  to  their  action  of  covenant.  So  here  no  use 
shall  be  raised  upon  these  considerations,  for  they  are  utterly  ineffectual 
to  such  purpose,  and  then  if  no  use  could  be  raised  by  the  common 
law,  from  thence  it  follows  that  the  statute  does  not  execute  any  pos- 
session here,  for  it  executes  no  possession  but  where  there  was  a  use 
before  ;  for  which  reason  the  bar  is  not  good,  but  the  plaintiffs  shall 
recover.  And  many  other  tilings  were  said,  and  manv  cases  put  to 
enforce  this  argument,  which  I  have  omitted,  my  design  being  onl}' 
to  show  brief!}'  the  principal  reasons  thereof. 

Bromleij,  and  an  Apprentice  of  the  Middle  Temple,  for  tlie  defend- 
ants. The  Apprentice  divided  tlie  matter  into  two  distinct  points. 
First,  whether  the  grant  and  agreement  upon  tliese  considerations  (ad- 
mitting it  had  been  without  deed  or  writing)  had  been  sufficient  to  raise 
the  uses  according  to  the  agreement  or  not.  Secondly',  admitting  the 
considerations  to  be  insufficient  it  thoy  had  been  without  deed,  or 
admitting  lliat  thei'e  were  no  considerations  at  all,  if  nevertheless 
the  uses  shall  be  raised  here,  inasmuch  as  the  agreement  thereunto  is 
by  deed. 

And  as  to  the  first  point,  which  contains  the  considerations,  he  said 
that  tlio  consi(h'rations  arc  in  number  four,  and  each  of  tliem  is  several, 
and  he  made  several  points  of  tliem,  and  argued  to  tliem  severally. 
The  first  is,  the  affection  of  the  said  Andrew  Baynton  for  his  heirs 
males  which  he  should  beget  on  the  body  of  ?>ances  Lee,  and  his  [)ro- 
vision  in  the  estate  made  for  their  security  accordingly.  The  second 
eonsid<'ratif)n  is  the  continuanc(\  of  the  land  in  the  name  of  Baynton, 
and  this  seems  to  be  a  good  consideration  to  raise  a  use.  The  lliird 
consifleration  here  is,  the  brotherly  love,  and  continuance  of  the  land 
in  such  of  the  blood  of  the  said  Andrew  as  arc  mentioned  in  tlu!  in- 
denture, viz.  his  brothers.  The  fourth  consideration  is  the  marriage 
had  between  Kflward  Baynton  and  Agnes  iiis  wife  ;  for  the  use;  is  lim- 
ited after  the  death  of  Andrew  to  Kdward  Baynton  and  Agnes  his 
wife,  for  term  of  their  lives. 

8 


11-4  SIIAUINGTOX   V.   STROTTON.  [CHAP.  I. 

Then  as  to  the  second  point,  admitting  the  considerations  to  be  in- 
suHicient,  or  admitting  that  no  consideralious  had  been  expressed,  yet 
the  covenant  of  itself,  without  consideration,  is  suflicieut  to  raise  the 
uses.  And  in  order  to  understand  this  the  better,  let  us  see  what  ad- 
vantage the  party  here  shall  have  by  the  deed,  if  the  deed  be  not  sutli- 
cient  to  raise  the  uses.  And  it  seems  clearly  that  he  shall  have  none. 
For  he  cannot  have  an  action  of  covenant  upon  the  deed,  because  there 
is  nothing  executor}-  here  ;  for  Andrew  has  covenanted  with  Edward 
that  he  and  all  persons  seised  of  the  land  shall  from  thenceforth  stand 
and  be  seised  to  the  uses  limited.  And  if  they  did  not  stand  seised, 
there  is  no  default  in  Andrew,  but  in  the  law,  for  he  granted  that  from 
thenceforth,  viz.  immediatel}',  he  would  be  seised,  and  no  default  can 
be  charged  in  him  if  he  did  not  stand  seised.  Nor  can  Edward  have 
an  action  of  covenant  against  him,  for  an  action  of  covenant  shall 
never  be  brought,  but  w'here  it  is  covenanted  that  a  thing  shall  be  done 
in  time  to  come,  or  that  it  was  done  in  time  past. 

And,  Sir,  by  the  law  of  this  land  there  are  two  ways  of  making  con- 
tracts or  agreements  for  lands  or  chattels.  The  one  is,  bywords,  which 
is  the  inferior  method  ;  the  other  is,  by  writing,  which  is  the  superior. 
And  because  words  are  oftentimes  spoken  by  men  unadvisedly  and 
without  deliberation,  the  law  has  provided  that  a  contract  by  words 
shall  not  bind  without  consideration.  As  if  I  promise  to  give  3-ou  £20 
to  make  your  sale  de  novo^  here  you  shall  not  have  an  action  against 
me  for  the  £20,  as  it  is  affirmed  in  the  said  case  in  17  Edward  IV.,  for 
it  is  a  nude  pact,  et  ex  nxido  pacto  non  oritur  actio.  And  the  reason 
is,  because  it  is  by  words  which  pass  from  men  lightly  and  inconsid- 
erately, but  where  the  agreement  is  by  deed,  there  is  more  time  for 
deliberation.  For  when  a  man  passes  a  thing  by  deed,  first  there  is 
the  determination  of  the  mind  to  do  it,  and  upon  that  he  causes  it  to 
be  written,  which  is  one  part  of  deliberation,  and  afterwards  he  puts 
his  seal  to  it,  which  is  another  part  of  deliberation,  and  lastl}'  he  deliv- 
ers the  writing  as  his  deed,  which  is  the  consummation  of  his  resolu- 
tion ;  and  by  the  delivery  of  the  deed  from  him  that  makes  it  to  him  to 
whom  it  is  made,  he  gives  his  assent  to  part  with  the  thing  contained 
in  the  deed  to  him  to  whom  he  delivers  the  deed,  and  this  deliver}'  is  as 
a  ceremony  in  law,  signifying  full}'  his  good  will  that  the  thing  in  the 
deed  should  pass  from  him  to  the  other.  So  that  there  is  great  delib- 
eration used  in  the  making  of  deeds,  for  which  reason  they  are  received 
as  a  hen  final  to  the  party,  and  are  adjudged  to  bind  the  party  without 
examining  upon  what  cause  or  consideration  they  were  made.  And 
therefore  in  the  case  put  in  17  Edward  IV.  put  it  thus,  that  I  by  deed 
promise  to  give  you  £20  to  make  your  sale  de  novo.,  here  you  shall 
have  an  action  of  debt  upon  this  deed,  and  the  consideration  is  not  ex- 
aminable, for  in  the  deed  there  is  a  sufficient  consideration,  viz.  the  will 
of  the  party  that  made  the  deed.  And  so  where  a  carpenter,  by  parol 
without  writing,  undertook  to  build  a  new  house,  and  for  the  not  doing 
of  it  the  party  in  11  Henry  IV.  brought  an  action  of  covenant  against 


SECT.  VII.]  SHARINGTON    V.   STKOTTON.  115 

the  carpenter,  there  it  does  not  appear  that  he  should  have  anything 
for  building  the  house,  and  it  was  adjudged  that  the  plaintiff  should 
take  nothing  by  his  writ :  but  if  it  had  been  b}-  specialty,  it  would  have 
been  otherwise  ;  and  so  it  is  there  held  b}'  Thirning,  causa  qua  siqn'a. 
So  in  45  Edward  III.  in  debt,  the  plaintiff  counted  that  a  covenant  was 
made  between  him  and  the  defendant,  that  the  plaintiff  should  marry 
the  defendant's  daughter,  and  that  the  defendant  should  be  bound  to 
him  in  £100,  and  he  said  that  he  had  married  his  daughter ;  and  the 
count  was  challenged,  because  this  debt  is  demanded  upon  a  contract 
touching  matrimon}-,  which  ought  to  be  in  Court  Christian  ;  but  not- 
withstanding this,  forasmuch  as  he  demanded  a  debt  upon  a  deed, 
whereb}'  it  was  become  a  lay  contract,  he  was  put  to  answer :  but 
otherwise  it  would  have  been  if  it  had  been  without  deed,  as  it  is  there 
put;  and  14  Edward  IV.  and  also  17  Edward  IV.  are,  that  if  it  be 
without  deed  the  action  does  not  lie,  because  the  marriage,  which  is  the 
consideration,  is  a  thing  spiritual ;  which  books  are  contrary  to  the 
opinion  of  Thorp  in  the  said  case  in  22  Ass.  Plow.,  fol.  305,  So  that 
where  it  is  by  deed,  the  cause  or  consideration  is  not  inquirable,  nor  is 
it  to  be  weighed,  but  the  part}"  ought  onl}-  to  answer  to  the  deed,  and  if 
he  confesses  it  to  be  his  deed,  he  shall  be  bound,  for  every  deed  imports 
,  in  itself  a  consideration,  viz.  the  will  of  him  that  made  it,  and  there- 
fore where  the  agreement  is  bv  deed  it  shall  never  be  called  a  nudum 
pactum.  And  in  an  action  of  debt  upon  an  obligation,  the  considera- 
tion upon  which  the  party  made  the  deed  is  not  to  be  inquired,  for  it  is 
sufficient  to  sa}'  that  it  was  his  will  to  make  the  deed.  And  so  inas- 
much as  in  the  principal  case  it  is  agreed  that  the  uses  might  be  raised 
by  the  deed,  if  there  had  been  a  consideration  in  it,  and  here  there  is  a 
consideration  contahied  in  the  deed,  viz.  the  will  of  Andrew  Baynton, 
which  is  sufficient  of  itself,  for  tiiis  reason  the  uses  shall  be  raised 
thereby ;  and  if  this  should  not  be  sufficient  to  raise  them,  yet  they 
should  have  been  raised  l)v  other  considerations,  if  they  iiad  been  with- 
out deed,  whereas  here  they  are  by  deed,  and  so  they  shall  l)e  raised 
a  fortiori.  For  which  reasons  they  prayed  judgment  that  the  plaintiffs 
might  be  barred.  And  many  other  things  were  said,  and  cases  put  to 
enforce  these  arguments. 

And  after  tliesc  arguments  the  Court  took  time  to  deliberate  unlil  Ilil- 
ar3'Tcnn,  and  from  tlience  until  Easter  Term,  and  from  thence  until  this 
present  Trinity  Term,  in  theeigiith  year  of  the  reign  of  the  present  Ciueen, 
and  the  defendants  now  prayed  judgment.  And  Corbp:t,  Justice,  said 
that  he  and  all  his  companions  had  resolved  that  judgment  should  be 
given  against  the  phiintiffs.  For  it  seemed  to  them  that  tlie  considera- 
tions of  the  continuance  of  the  land  in  tiie  name  and  blood,  and  of  broth- 
erly love,  were  sufficient  to  raise  the  uses  limited.  Ihit,  lie  said,  as  my 
Lord  Chief  Justice  is  not  now  present,  you  must  move  it  again  when  he 
is  present,  and  you  shall  have  judgment.  And  afterwards,  at  another 
day,  Catline,  Chief  Justice,  being  present,  the  Apprentice  prayed  judg- 
ment.    And  Catlink  and  the  Court  were  agreed  that  judgment  should 


116  PAGE  V.    MOULTON.  [C'HAP.  I. 

be  (Mitored  against  the  plaintiffs,  and  he  ordered  Haywood,  the  Protho- 
notury,  to  enter  it.  And  the  Apprentice  said,  may  it  please  your  Lord- 
ship to  show  us,  for  our  learning,  the  causes  of  your  judgment.  And 
Catlike  said,  it  seems  to  us  that  the  affection  of  the  said  Andrew  for 
the  provision  of  tlie  heirs  males  which  he  sliould  beget,  and  liis  desire 
that  tlio  land  should  continue  in  tlie  blood  and  name  of  IJaynton,  and 
the  brotherly  love  which  he  bore  to  his  brothers,  are  suflicient  consid- 
erations  to  raise  the  uses  in  the  land.  And  where  you  said  in  your 
argument  natarce  vis  maxima,  I  say  natura  his  maxima^  and  it  is  the 
sireatest  consideration  that  can  be  to  raise  a  use.  But  as  to  the  otlier 
consideration  moved  in  the  argument,  viz.  of  the  marriage  had  between 
Edward  Baynton  and  Agnes,  the  record  does  not  prove  tliis,  nor  is  it 
so  averred,  and  it  shall  not  be  so  intended,  and  therefore  I  don't  regard 
it,  but  the  other  causes  and  considerations  are  effectual,  and  those  which 
moved  us  to  our  judgment.  Wherefore  judgment  was  given  for  the 
defendants. 

Note,  that  by  the  civil  law  nudum,  pactum,  is  defined  thus  :  Nudum 
pactum  est  ubi  nulla  suhest  causa  prceter  conventionem, ;  sed  ubi  subest 
causa,  Jit  obligatio,  et  parit  actionem.  Also,  Nuda  jmctio  est  tenuis 
et  destituta  tam  7iomi7ie  jjroprio,  quam  mutatione  rerum,  et  fadoruin, 
m,anens  in  simplici  paciscentium  colloquio. 


PAGE  V.   MOULTON. 

In  the  Queen's  Bench,  Michaelmas  Term,  1570. 

[Reported  in  Dyer,  296  a,  placitum  22.] 

The  father,  upon  communication  of  marriage  of  his  youngest  son, 
promised  to  the  friends  of  the  wife  that  after  his  death  and  the  death 
of  his  own  wife  the  son  should  have  the  land  to  him  and  his  heirs. 
And  the  marriage  is  had  ;  but  this  promise  is  by  parol  only,  and  no 
consideration  on  the  part  of  the  woman  :  and  the  father  was  seised  of 
the  land  in  his  demesne,  and  not  in  use  ;  and  this  found  by  special 
verdict  upon  not  guilty.  Whether  the  use  changes  by  this  covenant 
or  not  was  the  doubt.  And  by  the  opinion  of  all  the  four  justices  of 
the  bench,  without  open  argument,  the  use  is  not  altered  by  such  naked 
promise;  and  so  adjudged  in  next  Hilary  Term.^ 

1  This  case  is  summarized  in  Crompton,  Courts,  f.  61  a,  with  the  following  com- 
ment ;  "  But  I  collect,  if  any  consideration  had  come  from  the  side  of  the  woman, 
that  the  use  would  change  by  this  agreement  because  there  is  quid  pro  quo,  although  it 
be  by  parol.  And  Manwood,  C.  B.  [1578-1592],  .says  that  it  was  adjudged  that  if  one 
say  to  his  son  and  a  woman  that  he  is  about  to  marry,  that  in  consideration  of  the 
same  marriage  that  they  shall  have  the  said  land  to  them  two  in  tail,  this  is  a  good 
tail  without  deed  or  other  circumstance,  if  they  marry  together,  ut  patet  aprrs."  See 
also  CromptoD,  Courts,  f.  61  b  ;  Shepp.  Touch.  (7th  ed.)  508;  Shepp.  Epit.  I06I.  — Ei«, 


SECT.   VII.]  CALLARD   V.    CALLARD.  117 


TAYLOR  V.  VALE. 
In  the  Queen's  Bench,  Michaelmas  Term,  1589. 

[Reported  in  Croke,  Elisabeth,  166.] 

Replevin.  The  case  was  upon  demurrer.  Vale,  having  a  rent 
charge  in  fee  by  indenture,  which  was  enrolled  within  six  months, 
giveth  and  granteth  it  to  Hall,  in  fee,  and  there  was  no  attornment. 

NoTA.  In  truth  the  case  was,  that  he  for  a  certain  sum  of  money 
giveth,  granteth,  and  selleth  the  rent,  &c.  But  it  was  pleaded  only, 
tbat  he  by  indenture  declit  et  concessit. 

And  it  was  ruled  without  any  argument,  that  the  rent  without  attorn- 
ment passeth  not,  being  only  by  way  of  grant,  and  not  of  bargain  or 
sale  ;  although  the  deed  was  enrolled.  — But  Wkay  said,  that  if  by  in- 
denture, in  consideration  of  a  certain  sum  of  money,  dedit  et  concessit 
and  the  deed  is  enrolled,  this  shall  pass  tlie  rent  without  attornment, 
though  there  be  no  words  of  bargain  and  sale. —  And  the  plaintiff  had 
judgment. 


CALLARD   V.  CALLARD. 
In  the  Queen's  Bench,  Michaelmas  Term,  1594. 

[Reported  in  Croke,  Elizabeth,  344.1] 

In  the  Exchequer  Chamber,  Michaelmas  Term,  159G. 

[Reported  in  Moore,  687,  placitum  960.2] 

Ejections  firm;e.  The  case  upon  special  verdict  was,  that  Tliomas 
Callard,  being  sei.sed  in  foe  of  certain  land,  in  consideration  of  a  mar- 
riage of  Eustace,  his  eldest  son,  said  these  words  (being  upon  the 
land)  :  "  Eustace,  stand  forth;  I  do  here,  reserving  an  estate  for  my 
own  and  my  wife's  life,  give  thee  these  my  lands  and  Barton,  to  thee 
and  thy  heirs."  The  question  was,  if  tliis  w.as  a  good  feoffment  to 
Eustace.' 

Cuke,  Altorne}/  Gcnr.ml,  for  tin;  plaintiff.  Tiiere  are  two  points  to 
be  considered.     First,  if  this  shall  inure  as  a  feoffment  to  the  use  of 

1  H.  c.  Pfipham,  47.  — En. 

2  8.  c,  nom.  Tallanle  v.  Tallanlo,  2  And.  64.  —  En. 

"  "  And  it  w.ifl  moved  liy  Ilenle  that  tlio  plaintiff  onj^lit  to  ho.  harrrd  lioranso  it  did 
not  pass  by  way  of  estate  .  .  .  and  ir)  use  it  cannot  pass,  because  tliat  1)y  a  bare  j)arol 
an  use  cannot  ho  raised,  and  hy  giving  my  land  to  my  son,  cousin,  and  the  like, 
nothing  will  pass  without  livery,  for  there  is  not  consideration  to  raise  a  use."  8.  c. 
Topham,  47.  —  Eu. 


113  CALLARD   V.    CALLARD.  [CHAP.  I. 

Thomas  Callard  autl  his  wife  for  theii-  lives,  aud  after  to  the  use  of  Eus- 
tace aud  his  heirs  ;  or  if  it  be  au  immediate  feoffment,  and  the  reserva- 
tion void.  Second!}',  if  it  be  not  a  feoffment,  if  the  words  spoken, 
being  in  consideration  of  marriage,  the  use  shall  arise  out  of  the  pos- 
session of  Thomas,  and  shall  execute  by  the  Statute  of  Uses,  although 
it  be  without  deed.  First,  it  seemeth  that  it  is  a  good  feoft"ment,  and 
the  use  shall  arise  upon  it,  although  the  words  reservant  are  first ;  for 
so  the  court  is  to  consider  it,  to  make  all  to  stand  together :  and  in 
'22  Elizabeth,  between  Hare  and  Barton,  it  was  adjudged  that  where 
one  giveth  lauds  to  J.  S.,  reserving  a  rent  to  the  feoffor  and  his  heirs, 
habendum  to  the  feoffee  and  his  heirs,  the  reservation  being  before  the 
habendum,  yet  the  feoffment  being  by  indenture,  it  is  well  enough,  for 
the  law  shall  marshal  it  according  to  the  intent.  So  here  it  shall  be 
intended  as  following,  aud  to  sliow  the  intent  of  the  parties,  and  not  to 
make  it  all  void.  Secondly,  admitting  that  the  reservation  is  repug- 
nant, aud  it  can  be  no  feoffment,  yet  the  use  shall  arise  and  execute  by 
parol,  for  it  is  out  of  the  Statute  of  Enrolments ;  for  this  doth  not 
hinder  the  raising  of  any  uses,  but  only  upon  bargains  and  sales,  which 
shall  not  execute  by  bargain  and  sale,  but  by  indenture  enrolled ;  but 
all  other  uses  are  at  the  common  law,  which  arise  upon  consideration 
upon  marriage,  &c.  But  he  did  agree  that  a  use  shall  not  arise  upon 
general  words,  or  words  spoken  infaturo,  but  in  prcesenti;  as  to  say, 
"  If  you  do  such  a  thing,  I  will  give  you  my  land."  But  upon  words 
spoken  advisedly,  and  by  reason  of  a  valuable  and  great  considera- 
tion, and  spoken  in  irroeseyiti,  as,  "  I  do  here,"  &c.,  which  is  an  imme- 
diate gift.  And  he  had  seen  the  record  of  the  case  12  Elizabeth,  Dyer, 
296,  and  the  words  were  upon  communication  of  a  marriage  to  be  had  ; 
"  I  will  assure  after  my  death  Old-Acre  to  my  son,"  it  was  ruled  no 
use  ariseth,  and  the  reason  seemeth  to  be  that  the  words  were  spoken 
infuturo;  and  therefore  if  one  saith  to  his  son,  in  consideration  he  is 
his  son,  "  I  do  give  thee  my  manor  of  D.,"  this  is  sufficient  to  raise  a 
use  ;  for  they  being  words  spoken  with  advisement,  and  for  considera- 
tion, it  shall  be  intended  a  gift  of  the  land. 

Gawdy.  I  have  not  seen  any  book  that  at  the  common  law  a  use 
shall  arise  by  parol,  but  in  a  bargain  and  sale  which  is  by  reason  of 
the  consideration  given  for  the  land,  and  that  is  the  reason  that  a  fee 
doth  pass  without  the  word  "  heirs  "  ;  and  in  this  case  a  use  shall  not 
arise,  for  it  appeareth  his  intent  was  to  pass  the  land  by  way  of  feoff- 
ment when  he  saith,  "  Stand  forth  ;  I  do  here  give  thee  this  land,"  &c., 
which  is  void  by  way  of  feoffment,  for  the  reservation  preceding  it  is 
repugnant  to  the  livery,  for  it  cannot  inure  in  faturo.  Fenneu.  The 
reservation  is  void,  and  it  shall  inure  to  Eustace  presently ;  and  a 
use  by  parol  upon  good  consideration  is  sufficient.  Clench.  It  shall 
inure  as  a  feoffment  to  the  son,  and  a  use  shall  arise  to  the  father,  &c., 
and  so  the  intent  of  all  the  parties  shall  be  observed. 

At  another  day  it  was  moved  again  ;  and  Popham  said  they  were  all 
resolved  that  judgment  shall  be  given  for  the  plaintiff  (who  claimed 


SECT.  VII.]  CALLARD   V.    CALLARD.  119 

under  Eustace) ;  and  being  moved  to  show  the  reasons  of  their  judg- 
ment, they  would  not.  But  Gawdy  said  he  was  clear  of  opinion  that 
a  use  shall  not  arise  by  parol. -^    PoruAii  and  Fexneu  said  they  were 

■  "  Gawdy  said,  That  the  words  as  they  are  spoken  amount  to  a  livery,  if  the  words 
are  sufficient  to  pass  tlie  estate,  but  he  conceived  that  the  words  are  not  sufficient  to 
make  the  estate  to  pass  to  the  said  Eustace,  because  his  intent  appeareth,  that  Eustace 
was  not  to  have  the  laud  until  after  the  death  of  him  and  his  wife,  and  therefore  of 
the  same  effect,  as  if  he  had  granted  the  laud  to  the  said  Eustace  after  his  death ;  and 
as  an  use  it  cannot  pass,  because  by  a  bare  word  an  use  cannot  be  raised,  as  appeareth 
in  divers  reports. 

"  Mich.  12  &  13  Eliz.,  which  is  a  good  case  to  this  purpose.  But  to  say  generally 
that  an  use  cannot  be  raised  or  charged  upon  a  perfect  contract  by  words  upon  good 
consideration,  cannot  be  law ;  and  therefore  it  is  to  be  considered  what  the  law  was 
before  the  statute  of  27  Henry  VIII.  And  I  think  that  none  will  deny,  but  that  by 
grant  of  land  for  money,  before  tiiis  statute  an  use  was  raised  out  of  the  same  land, 
for  a  bargain  and  sale  of  land  for  money,  and  a  grant  of  land  for  money  is  all  one, 
and  no  difference  between  them :  And  is  not  a  grant  of  land  made  in  consideration  of 
marriage  of  my  son  and  daughter,  as  valuable  as  a  grant  of  it  for  money?  It  is  clear 
that  it  is,  and  much  more  valuable,  as  my  blood  is  more  valuable  to  me  than  my 
money ;  and  therefore  it  is  absurd  to  say,  that  the  consideration  of  money  may  raise 
or  change  an  use  at  common  law,  and  not  such  a  consideration  of  marriage. 

"  And  in  such  a  case  at  common  law  there  was  not  any  diver.sity,  that  the  party 
who  so  grant  or  bargain  for  the  one  or  the  other  considerations  was  seised  of  the  land 
granted,  or  bargained  in  use,  or  possession,  but  that  the  use  by  the  contract  was  trans- 
ferred according  to  the  bargain  in  both  cases  where  there  is  a  consideration :  And. 
wiiere  through  all  the  law  shall  it  be  seen  that  if  anything  which  might  pass  by 
contract,  there  need  any  other  thing  than  the  words  which  make  the  contract,  as 
writing  or  the  like  testifying  it:  And  that  the  law  was  .so,  it  appeareth  by  the  Statute 
of  Inrulments  of  Bargains  and  Sales  of  Land  made,  27  Henry  VIII.,  whicli  enacts,  that 
no  freehold,  nor  use  thereof  shall  pass  by  Ijargain  and  sale  only,  unless  it  be  by  deed 
indented  and  enrolled  according  to  the  Statute;  Ergo,  if  this  statute  had  not  been,  it 
had  pa.ssed  by  the  bargain  and  sale  l)y  bare  words;  and  inasmuch  as  the  statute  enacts 
tiiis  in  the  case  of  bargain  and  sale  only,  tiie  other  cases,  as  this  case  here,  are  as  it  was 
before  at  common  law.  And  by  an  exception  at  the  end  of  the  same  statute,  London 
is  as  it  wius  at  common  law,  and  tiiercforo  now  lands  may  pass  tiiere  at  tliis  day  by 
bargain  and  sale,  by  word  witliout  deed,  for  it  is  out  of  the  statute  :  And  liow  can  wo 
nay  that  the  Statute  of  Uses  does  anything  to  alter  the  cominon  law  in  this  point,  by 
any  intent  of  the  makers  tliereof,  wlicrf;as  at  the  same  I'arliamont  they  made  an  es- 
pecial law  in  the  cuse  of  l)argain  and  sale  of  lands.  And  at  tiiis  day,  for  tlie  lands  in 
London,  notwithstanding  the  Statute  of  Uses,  the  law  hath  been  put  in  practice,  and 
alw.'iys  hr)lden  ;i3  to  tlie  lamls  there  to  be  good,  if  sold  by  bare  ])arol  as  it  were  at 
common  law.  And  I  liavc  heard  it  rc|)ortod  by  Manwood,  late  Chief  l^arcjn  of  the 
i^xchequer,  that  it  wan  in  question  in  the  time  of  King  Edward  the  Sixth,  wlietiier  the 
use  of  a  freehold  of  land  will  pa.-;s  upon  a  contract  by  parol  witliout  deed  in  consid- 
eration of  marriage;  upon  wliicii  all  the  then  justices  were  n«.seml)led  u])on  a  doulit 
rising  in  a  case,  liap[)ening  in  liie  .Star  ("hamlicr,  and  then  resolved  liy  all  tlie  justices 
(us  lie  said)  th.at  it  siiall  pa.ss ;  and  he  .said,  tliat  himself  was  of  tiiis  opinicm  also:  And 
to  8.iy,  that  by  grant  of  land  at  common  law,  tiio  use  had  been  raised  out  of  the  pos- 
BCS.'^ioiiH  nf  the  laml  which  the  graiitur  tiicn  h;id,  ami  by  it  to  pass  to  the  bargainee, 
iuid  that  it  shall  not  be  raised  and  ])assed  to  anoliier  by  grant  of  lan<l  in  consiibralion 
of  marriage,  which  is  a  more  valuable  cunsideratiou  than  money,  is  absurd  and  against 
all  reason. 

"Anil  for  the  solemnity,  uses  in  such  cases  (in  re.'<pect  of  marriage)  were  the  cause 
that  they  always  were  left  as  they  were  at  common  law,  and  not  restrained  as  the  case 
of  bargain  and  snle  is,  which  by  cominon  infendment  may  be  made  more  easily  and 
secretly,  tliau  that  which  is  done  in  consideration  of  marriage,  which  is  always  a  thing 


120  CALLARD   V.    CALLARD.  [CHAP.  L 

dear  of  a  contrary  opiniou  ;  and  Poi'iiam  said  that,  7  Edward  VI.,  it 
was  adjudged  that  a  use  may  rise  by  parol,  and  he  could  show  the 
record  of  it.  Fknner  said  it  was  a  good  feoffment,  but  would  say  no 
more.     And  it  was  adjudged  for  the  plaintiff. 

"Whereupon  the  defendant  brought  a  writ  of  error  in  the  Exchequer 
Chamber.     And  here  the  judgment  was  reversed. 

Note  that  in  the  Queen's  Bench  Popiiam,  C.  J.  held  strongly  that 
the  consideration  of  blood  raised  a  use  to  Eustace  without  writing 
(escript),  and  so  he  had  the  possession  by  27  Henry  VIII.  But  Gaw- 
DT,  Fenner,  and  Clench,  JJ.  were  against  this  opinion,  yet  in  the  final 
judgment  they  agreed,  because  they  took  the  words  to  amount  to  a 
feoffment  with  livery  being  upon  the  land,  and  the  use  to  be  to  the 
feoffor  and  his  wife  for  life,  and  afterwards  to  P^ustace  and  his  heirs. 

But  note  that  in  the  Exchequer  Chamber  Ewins,  B.  took  the  law  in 
the  same  manner  as  the  puisne  judges  in  the  Queen's  Bench,  and  there- 
fore was  for  affirming  the  judgment.  But  he  was  against  Popham,  C.  J., 
that  the  use  would  not  arise  without  a  writing.  Beaumont,  J.  took 
this  to  be  a  feoffment  to  Eustace  in  fee,  and  the  reservation  to  the 
father  and  his  wife  to  be  void  for  repugnancy,  and  therefore  he  would 
have  had  the  judgment  affirmed,  and  he  was  also  against  Popham. 

But  the  other  judges,  Anderson,  C.  J.,  Peryam,  C.  B.,  Clarke,  B., 
"NValmsley,  J.,  and  0-sven,  J.,  all  agreed  that  there  was  no  feoffment 
executed;  because  the  intent  was  repugnant  to  law ;  i.  e.  to  pass 
an  estate  to  Eustace,  reserving  a  particular  estate  to  himself  and  his 
wife.  And  it  could  not  be  a  use,  because  the  purpose  was  not  to  raise 
a  use  without  an  estate  executed,  but  by  an  estate  executed  which  did 
not  take  effect.  And  they  all  agreed  that  if  this  was  a  use,  still  it 
would  not  arise  upon  natural  affection  without  a  deed.^ 

public  and  notorious,  but  it  is  not  reasonable  that  every  slight  or  accidental  speech 
shall  make  an  alteration  of  any  use :  As  if  a  man  ask  of  any  one  what  he  will  give  ov 
leave  to  any  of  his  sous  or  daughters  for  their  advancement  in  marriage,  or  otherwise 
for  their  advancement,  this  shall  be  but  as  a  bare  speech  of  communication  which  sliall 
not  alter  or  change  any  use :  But  where  there  is  upon  the  speech  a  conclusion  of  a 
marriage  between  the  friends  of  the  parties  themselves,  and  tliat  in  consideration 
thereof  they  shall  have  such  lands,  and  for  such  an  estate,  there  the  use  shall  be  raised 
by  it,  and  shall  pass  accordingly  to  the  parties,  according  to  the  conclusion  which 
Fennor  granted."     s.  c.  Popham,  47-49.  —  Ed. 

1  "  It  was  resolved  that  a  use  at  this  day  cannot  be  raised  without  deed."  Hore  v. 
Dix  (1660),  1  Sid.  2.5,  26;  Foster  v.  Foster,  1  Sid.  82  ;  Fox  v.  Wilcocks,  2  Roll.  Ab. 
788,  pi.  2  ;  Pierse  u.  Petfield,  2  Roll.  Ab.  788,  pi.  2  ;  Jones  v.  Morley,  1  Ld.  Ray.  287 
Accord. 

In  Rolle's  abridgment  of  the  principal  case  is  this  addition:  "And  there  said  that 

1  Ma.  per  curiam  accordant.  And  that  Wray,  C.  J.  said  that  when  he  was  sergeant 
[1567-1572]  the  opinion  of  all  the  judges  was  so.    Contra,  37, 38  Eliz.  Corhyn  v.  Corbyn, 

2  Roll.  Ab.  788,  pi.  1 ."  Corbyn  v.  Corbyn  is  reported,  sub  nomine  Corben's  Case,  in 
Moore,  544,  pi.  722,  and  seems  to  be  the  same  case  as  Callard  v.  Callard. 

"  I  would  have  one  case  showed  by  men  learned  in  the  law  where  there  is  a  deed 
and  yet  there  ueeds  a  consideration.  As  for  parol,  the  law  adjudged  it  too  light  to 
give  action  without  consideration ;  but  a  deed  ever  in  law  imports  a  consideration, 


SECT.  VIL]  same's  CASE.  121 


FRAMPTON  V.  GERRARD. 

In  the  Queen's  Bench,  Michaelmas  Term,  1601. 

[Reported  in  2  Rolle's  Abridgment,  785  (K.),  placitum  4;  791,  placitum  1.] 

Per  Curiam.  If  a  man  covenant  in  consideration  of  blood  and  of 
the  marriage  of  his  bastard  daughter  to  stand  seised  to  the  use  of  the 
bastard  daughter,  this  is  no  consideration  to  raise  a  use,  because  in  law 
she  is  not  his  daughter  hut  Jilia  pop uli? 

If  a  man  levies  a  fine  of  certain  land,  and  covenants  b}'  indenture  in 
consideration  of  blood  and  the  marriage  of  his  bastard  daughter  that 
the  conusee  shall  stand  seised  to  the  use  of  the  daughter,  although  this 
is  not  a  good  consideration  to  raise  a  use  b}'  way  of  covenant,  still  it  is 
sufficient  upon  a  fine,  for  the  will  of  the  part}-  is  sufficient  for  this  with- 
out consideration. 


SAME'S   CASE. 
In  the  Exchequer,  Trinity  Term,  1609. 

[Reported  in  2  Rolle's  Abridgment,  191,  placitum  2.] 

If  a.  in  consideration  of  £100  by  B.  makes  a  feoffment  in  fee  to  B. 
to  the  use  of  li.  and  C,  the  son  of  B.,  this  shall  raise  the  use  to  G.  well 
enough,  although  all  the  consideration  was  given  b}'  B. 

because  of  the  deliberation  and  ceremony  in  the  confection  of  it ;  and  tlierefore  in  8  'Re- 
tina; [Sharrinptou  v.  Strotton,  supra,  p.  lO'Jj  it  is  solenmly  argued  tiiat  a  deed  should 
raise  an  use  without  any  other  consideration.  .  .  .  And  yet  they  say  that  au  use  is  but 
a  nimble  and  light  thing;  and  now  contrariwise,  it  scemeth  to  be  weightier  than  any- 
thing else ;  for  you  cannot  weigh  it  up  to  raise  it,  neither  by  deed  nor  deed  enrolled, 
without  the  weight  of  a  consideration.  But  you  shall  never  find  a  reasou  of  this  to 
the  world's  end  in  the  law,  but  it  is  a  reason  of  Chancery  and  it  is  this  :  that  no  court 
of  conscience  will  enforce  donuin  graluitam,  tho'  tiie  interest  a])]iear  never  so  clearly 
where  it  is  not  executed  or  sufficiently  passed  by  law ;  but  if  money  had  been  paid, 
and  so  a  person  damnified,  or  that  it  was  for  the  fstal)lishin<Mit  of  his  house,  then  it  is 
a  good  matter  in  the  Chancery."  IJacon,  Keading  oti  .Statute  of  Uses  (Ilov.c's  ed.). 
13,  14;  7  Spedding's  Bacon  (ed.  1779),  403,  404.  See  2  Harvard  Law  Keview,  18, 
19. —  En. 

'  (ierrardo  v.  Worsley,  Dy.  374,  pi.  10,  1  And.  7'J,  pi.  145,  s.  c. ;  Ferrot's  Case, 
2  Koll.  Abr.  785  (K.),  pi.  5  ;  Blount  v.  Ulonnt,  2  S.  Ca.  L.  Uepos.  587. 

Conf.  Ivey  v.  (irauberry,  G6  N.  Ca.  223  Accord.  —  Kd. 


122  ANONYMOUS.  [CHAP.   L 


ANONYMOUS. 

[Reported  in  2  Eolle's  Abridgment,  78  (I.),  placita  5,  6,  7.] 

If  a  man  in  consideration  that  B.  will  marry  his  daughter  covenants 
to  stand  seised  to  the  use  of  B.  and  his  daughter,  remainder  to  C,  this 
is  a  void  remainder  to  C,  for  he  is  a  stranger  to  the  consideration.' 

In  consideration  of  certain  money  given  by  B.  a  man  may  covenant 
to  stand  seised  to  the  use  of  A.  for  life,  remainder  to  C.  in  fee ;  for 
here  it  is  apparent  that  the  money  was  given  for  both  estates ;  and  al- 
though A.  and  C,  are  strangers  to  the  giving  of  the  money,  still  they 
are  sufficiently  privy  since  it  was  given  for  them. 

So,  in  consideration  of  certain  moneys  given  by  B.,  a  man  may  cov- 
enant to  stand  seised  to  the  use  of  B.  for  life,  remainder  to  C.  in  fee, 
or  with  divers  mesne  remainders,  for  the  m^ney  was  given  for  all  the 
estates.     Cit.  Plow.  307  b. 

1  Paget's  Case,  1  Rep.  154  ;  Moo.  193,  pi.  343;  1  Leon.  194,  pi.  279,  s.  c;  "Wise- 
man V.  Barnard,  2  Rep.  15;  Moo.  195,  pi.  344 ;  And.  140,  pi.  191,  s.  c. ;  Fox  v.  Wil- 
cocks,  2  Roll.  Abr.  733  (H.),  pi.  4;  Smithy  v.  Risley,  Cro.  Car.  529;  Jones,  418, 
pi.  6,  s.  c. ;  Bulkley's  Case,  Ley,  57,  58 ;  Whaley  v.  Tankard,  2  Lev.  52,  54 ;  Nugent 
V.  Hancock,  22  Vin.  Abr.  Uses  (H.),  pi-  13  Accord 

Cestui  que  use  is  a  stranger,  unless  (1)  nearly  related  by  blood  to  the  covenantor, 
e.  g.  a  son  or  grandson  (Bonde  v.  Edmonds,  2  Roll.  Abr.  782,  Uses  (H.),  pi.  3 ;  2  Roll. 
Abr.  785,  Uses  (K.),  pi.  6,  8) ;  a  dauglitor  (2  Roll.  Abr.  784,  Uses  (I.),  pi.  2);  a 
brother  (Sharington  v.  Strotton,  supra,  p.  109);  a  nepliew  ( Englefield's  Case,  7  Rep. 
11  6);  and  the  like;  or  unless  (2)  connected  by  marriage  with  the  covenantor,  e.  g. 
wife  of  covenantor  (Bedell's  Case,  7  Rep.  40;  Burgoine  v.  Burgoine,  22  Vin.  Abr. 
Uses  (N.),  pi.  10;  Co.  Lit.  112  a);  husband  of  covenantor's  daughter  (2  Roll.  Abr. 
784,  Uses  (I.),  pi.  2) ;  wife  of  covenantor's  son  (Anon.,  13  Rep.  48;  Sheffield's  Case, 
13  Rep.  49;  Corbyn  v.  Corbyn,  2  Roll.  Abr.  784,  Uses  (I.),  pi  4;  Bould  v.  Winston, 
Cro.  Jac.  168  ;  Noy,  125,  s.  c.) ;  wife  of  covenantor's  brother  (2  Roll.  Abr.  783,  Uses 
(L),  1)1.  1);  and  the,  like. 

The  cestui  que  use  need  not  be  the  covenantee.  Bedell's  Case,  supra ;  Harpur'a  Case, 
11  Rep.  24  6;  Buckler  v.  Symons,  2  Roll.  Abr.  788,  Uses;  Winch,  61,  s.  c.  In  Co. 
Lit.,  supra,  the  learned  commentator  says :  A  man  may  by  his  deed  covenant  with 
others  to  stand  seised  to  the  use  of  his  wife.  .  .  .  But  a  man  cannot  covenant  with  his 
wife  to  stand  seised  to  her  use ;  because  he  cannot  covenant  with  her,  for  the  reason 
that  Littleton  here  yieldeth  (viz.  that  '  his  wife  and  he  are  but  one  person  in  tht 
law')."    See  to  the  same  effect  Gilb.  Trusts,  52,  54.  — Ed. 


SECT.  YII.]  PYE,  DUBOST,  EX  PARTE.  123 


PYE, 
DUBOST 


J 


Ex   PARTE. 


In  Chaxcert,  before  Lord  Eldon,  C,  April  2Q,  29,  May  27, 

June  13,  28,  1811. 

[Reported  in  18  Vesei/,  140.] 

William  Mq-wbray,  by  his  will  dated  the  10th  of  April,  1806,  giv- 
ing his  wife  the  residue  of  his  property-  after  payment  of  his  debts, 
except  the  sums  after  mentioned,  among  other  legacies,  gave  as  fol- 
lows :  "  I  give  and  bequeath  the  sum  of  £4,000  sterling  to  Louisa  Hor- 
tensia  Garos,  daughter  of  John  Louis  Garos,  formerly  of  Berwick 
Street,  "Westminster ;  the  like  sum  of  £4,000  to  Emily  Garos,  her  sis- 
ter, and  £4,000  to  Julia  Garos,  her  other  sister;  and  in  case  of  the 
death  of  one  of  the  three,  I  desire  that  the  legacy  may  be  divided 
equally  betwixt  the  two  surviving  sisters ;  and  in  case  of  the  death  of 
two  of  them,  I  desire  the.  whole  £12,000  ma}'  be  paid  to  the  surviving 
sister." 

The  testator  also  gave  to  John  Louis  Garos  £G00 ;  and  "to  Marie 
Genevieve  Garos,  his  wife,  the  sum  of  £2,500  sterling  for  her  own 
use,  and  over  whicli  her  husband  is  not  to  have  an}-  power :  he  having 
lived  abroad  for  many  years,  and  she  in  this  country,  and  no  corre- 
spondence having  passed  between  them  during  that  time.  Her  own 
receipt  shall  be  a  suflicient  authorit}-  to  my  executors  for  paying  her 
the  above  legac}-." 

The  testator  died  on  the  8th  of  June,  1809.  His  widow  became  a 
lunatic ;  the  petitioner,  Pye,  was  the  committee  under  the  commission, 
and,  upon  her  death,  took  out  administration  to  her,  and  administra- 
tion (le  bo f lis  non  to  the  testator. 

The  Master's  report  stated  that,  b}'  a  letter  written  by  the  testator 
to  Chistophor  Dnl)Ost,  in  Paris,  on  the  2.^>th  of  November,  1807,  the 
testator  authorized  him  to  purchase  in  France  an  annuit}' of  £100  for 
the  benefit  of  tlie  said  ^M.'irie  Genevieve  Garos  for  her  life,  and  (o  draw 
on  him  for  £1, .000  on  account  of  such  purchase;  and  under  that  author- 
it}'  Dubost  purchased  an  annuity  of  tliat  value  ;  but  that,  as  she  was 
married  at  the  time,  and  also  deranged,  the  annuity  was  purchased  in 
the  name  of  the  testator  ;  and  the  testator  sent  to  Dubost,  by  his  desire, 
a  power  of  attorney,  authorizing  him  to  transfer  to  Marie  (Jencvievc 
Garos  the  said  :iiinuity,  dated  the  10th  of  June,  1808. 

The  report  further  found,  upon  the  aflidavit  of  Dubost  and  the  copy 
of  the  deed,  that  the  first  intimation  he  received  of  the  death  of  the 
testator,  who  died  in  June,  1S09,  was  in  November,  180:>  :  and  that, 
in  ignorance  of  such  death,  Duliost,  on  the  21st  of  Octolier,  1H0!».  exer- 
cised the  power  vested  in  him,  by  executing  to  Marie  Genevieve  Garos, 


124:  PYE,   DUBOST,   EX   PARTE.  [CIIAP.  I. 

her  late  hnsbantl  being  then  dead,  and  she  of  sound  mind,  a  deed  of 
gift  of  the  said  annuity  ;  and  the  Master  found  that,  by  the  law  of 
Trance,  if  an  attorney  be  ignorant  of  the  death  of  tlie  party  who  has 
given  the  power  of  attorney,  whatever  he  has  done  while  ignorant  of 
such  death  is  valid.  The  Master,  therefore,  stated  his  opinion  that  the 
annuity  was  no  part  of  the  personal  estate  of  William  Mowbray. 

The  first '  petition  prayed  that  so  much  of  the  report  as  certifies  the 
French  annuity  to  be  no  part  of  the  testator's  personal  estate  may  be 
set  aside  ;  and  that  it  may  be  declared  that  the  said  annuity  is  part  of 
his  personal  estate. 

Sir  Arthur  PxrjgoU,  Mr.  Bichards,  Mr.  Wlngfield,  Mr.  Home,  and 
Mr.  Wear.,  for  different  parties,  in  support  of  the  first  petition.  The 
French  annuity  being  purchased  in  the  testator's  name,  and  no  third  per- 
son interposed  as  a  trustee,  the  interest  could  not  be  transferred  from 
him  without  certain  acts,  which  were  not  done  at  the  time  of  his  death. 
It  was  therefore  competent  to  him,  during  his  life,  to  change  his  pur- 
pose, and  to  make  some  other  provision  for  this  lady  by  funds  in  this 
country- ;  conceiving,  perhaps,  that  she  might  return  here.  The  author- 
it}'  given  to  purchase  this  annuity  could  not  have  been  enforced  against 
him  during  his  life  \)y  a  person  claiming  as  a  volunteer ;  nor  can  it  be 
established  against  his  estate  after  his  death,  the  act  which  would  have 
given  the  benefit  of  it  against  the  personal  representative  not  having 
been  completed.  "Where  a  question  is  to  be  decided  by  a  foreign  law, 
the  first  step  is  an  inquiry  by  the  Master  to  ascertain  what  is  the  law  of 
that  country. 

Sir  Samuel  Komilly  and  Mr.  Bell.,  contra. 

The  Lokd  Chancellor  [Eldon].  The  other  question  involves  not 
only  the  construction  of  the  French  law,  and  the  point  whether  that 
has  been  sufBcientl}'^  investigated,  but  further,  whether  the  power  of 
attornej^  amounts  here  to  a  declaration  of  trust.  It  is  clear  that  this 
court  will  not  assist  a  volunteer ;  yet,  if  the  act  is  completed,  though 
voluntar}',  the  court  will  act  upon  it.  It  has  been  decided  that,  upon 
an  agreement  to  transfer  stock,  this  court  will  not  interpose  ;  but  if 
the  party  had  declared  himself  to  be  the  trustee  of  that  stock,  it  be- 
comes the  propert}'^  of  the  cestui  que  trust  without  more ;  and  the  court 
■svill  act  upon  it. 

Jime  13th.  The  Lord  Chancfxlor  [Eldon].  These  petitions  call 
for  the  decision  of  points  of  more  importance  and  difficulty  than  I  should 
•wish  to  decide  in  this  way,  if  the  case  was  not  pressed  upon  the  court. 
With  regard  to  the  French  annuity,  the  Master  has  stated  his  opinion 
as  to  the  French  law,  perhaps  without  sufficient  authority,  or  sufficient 
inquiry  into  the  effect  of  it,  as  applicable  to  the  precise  circumstances  of 
this  case  ;  but  it  is  not  necessary  to  pursue  that,  as  upon  the  documents 
])efore  me  it  does  appear  that  though  in  one  sense  this  may  be  repre- 
sented as  the  testator's  personal  estate,  yet  he  has  committed  to  writing 

^  Only  so  much  of  the  case  is  given  as  relates  to  the  petition  —  ''i^D. 


SECT.  VII.]  FLOWER  V.   MARTEN.  125 

what  seems  to  me  a  sufficient  declaration  that  he  held  this  part  of  the 
estate  in  trust  for  the  annuitant.^ 

Under  this  judgment,  the  order  was  pronounced  dismissing  the  first 
petition. 


FLOWER  V.  MARTEN. 
In  Chancery,  before  Lord  Cottexham,  C,  April  6,  8,  1837. 

[Reported  in  2  Mylne  Sf  Craig,  459.] 

This  bill  was  filed  by  Sir  James  Flower  for  the  delivery  up  of  a 
bond  for  £4,500,  which  had  been  given  by  him  to  his  father,  under 
the  following  circumstances. 

The  plaintiff,  the  son  of  Sir  Charles  Flower,  became,  in  the  year 
1822,  embarrassed  in  his  circumstances,  and  a  misunderstanding  hav- 
ing, in  consequence,  taken  place  between  him  and  his  father,  the  latter 
applied  to  the  defendants,  Messrs.  Muspratt  and  Marten,  his  old  and 
mtimate  acquaintances,  to  interfere  between  himself  and  the  plaintiff, 
and  to  assist  in  adjusting  the  differences  then  existing  between  them. 
This  duty  they  accordingly  undertook,  after  exacting  from  both  par- 

'  The  validity  of  a  gratuitous  declaration  of  tru.'st  is  now  generally  admitted. 
Wheatley  v.  Purr,  1  Keen,  5.51  ;  Smith  v.  Warde,  15  Sim.  56  (semble) ;  Thorpe  v.  Owen, 

5  Beav.  224  ,  Drosier  v.  Brereton,  15  Beav.  221  ,  (iray  i'.  Gray,  2  Sim.  n.  s  273.;  Steele 
V.  Waller,  28  Beav.  466 ;  Forbes  c.  Forbes,  30  Law  Times,  176  (semble) ;  Evans  v.  Jen- 
nings, 6  W.  R.  616  ;  Gee  v.  Liddell,35  Beav.  621  ;  Jones  v.  Locke,  1  Ch.  Ap.  23  (semble) ; 
Armstrong  v.  Tim])eron,  24  L.  T.  Rep.  275  ;  I'ethybridge  v.  Burrow,  .53  L.  T.  Rep.  5 ; 
Johnstone  v.  Mappin,  64  L.  T.  Rep.  48;  Willcocks  v.  Hannyngton,  5  Ir  Ch.  38;  Kelly 
V  Walsh,  1  L.  R.  Ir.  275  ;  Tiffany  v.  Clarke,  6  Grant,  Ch.  (Can.)  474  ;  Linton  o.  Browii, 
20  Fed.  Rep.  455  ;  Crompton  v.  Vas.ser,  19  Ala.  259,  266  (semble) ;  Sayrei-.  Weil  (Ala.), 
10  S.  R.  546  ;  Webb's  Estate,  49  Cal.  541  (semble)  ;  Cotteu  v.  Blocker,  6  Fla.  1,8  (semble) , 
Dresser  i'.  Dre.sser,  46  Mo.  48  (semble) ,  Cobb  v.  Knight,  74  Me  253  ;  Barkley  v.  Lane, 

6  Bush,  587 ,  Tanner  v.  Skinner,  11  Bush,  120;  Smith  i'.  Darby,  39  Md.  268  ;  Taylor 
I'  Henry.  48  .Md  S'lO,  560  ;  (ierrish  v. How  Bedford  Inst,  128  Mass.  159;  Alger  »;  North 
End  Bank,  146  .Ma.'*s.  418;  Smith  v.  Speer,  34  N.  J.  Eq.  336;  Millspangh  v.  Putnam, 
16  Abb.  Pr.  380 ;  Taylor  i-.  Kelly,  5  Hun,  115;  Boone  v.  Citizens'  Hank,  21  Hun,  235  ; 
Terry  v.  Bale,  I  Deni.452,  We.stlako  v.  Wheat,  43  Hun,  77  ;  Fowler  v.  Bowery  Bank, 
47  Hun, 399,  Phipanl  r.  Pliipar<l,55  Hun, 4.33;  Macy  v.  Williams,  55  Hun,  490  (alTirmod 
125  N.  Y.  767) ,  McArtbur  v  (Jordon,  126  N.  Y  597  (semble) ;  lie  Walker,  17  N.  Y.  Sup. 
666;  Duly  v.  Duly  (Ohio),  3  W.  L.  M.  42;  Crawford's  App.,  61  Pa.  52;  Dickerson's 
App.,  115  Pa.  19H;  A'e  Smitii's  Estate,  144  Pa.  428  ;  l{,ay  r.  Simmons,  II  R.  1.266, 
O'Brien,  11  R.  I.  419;  Atkinson,  16  R.  I.  413;  Clarke  i?.  Dcveaux,  1  S.  Ca.  172; 
Reilly  v.  Whipple,  2  S.  Ca.  277,  Gadsden  o.  Whaley,  14  S.  Ca.  210;  Pope  v.  Savings 
Bank,  56  Vt.  2H4  (HtmbU). 

But  see,  cotitrn,  Wiiodland  r.  Newhall,  31  Fed.  Rep.  434,440  (semble)  ;  Yarborough  v 
West,  10  Ga.  471  ;  Pittnian  c.  Pittman,  107  N.  Ca.  159  ;  Thompson  v.  Branch,  Meigs,  390. 
(Compare  Lowry  v.  McfJoe,  3  Head,  269  ;  Harris  v.  Union  Bank,  1  Coldw.  152, 154-155.) 

Sec  further  Price  v.  Price,  infra,  p.  168,  n.  I.  —  Ei>. 

In  the  following  cases  the  language  was  considered  not  to  import  nn  intention  on 
the  part  of  the  speaker  or  writer  to  make  himself  a  trustee;  lie  Webb,  49  Cal.  541 ; 
Marshall  i-.  Strange  (Ky.  1888),  9  S.  W.  Rep.  250. 


126  FLOWER  V.   MARTEN.  [CHAP.  L 

ties  (the  father  ami  son)  a  pledge  and  promise  that  tliey  would  abide 
by  aud  perform  whatever  course  Messrs.  Muspratt  aud  Marten  should 
I'ecomnioud.  Having  thus  undertaken  the  mediation,  they  proceeded 
to  investigate  the  affairs  of  the  plauitiff,  and  they  embodied  the  result 
of  their  determination  in  a  letter  addressed  to  Sir  Charles  Flower, 
dated  the  28th  of  November,,  1822,  in  which,  after  recommending  that 
Sir  Charles  Flower  should  discharge  his  son's  debts,  and  that  any 
available  funds  of  the  plaintiff  should  be  applied  towards  the  pay- 
ment of  the  money  advanced,  they  recommended  and  determined  a8 
follows :  — 

"  That  your  son  shall  give  you  his  bond,  bearing  date  from  the  last 
payment  of  any  sum  in  the  aforesaid  statement,  for  £4,500,  in  satis- 
faction of  pecuniary  claims  upon  him,  including  the  payments  in  the 
said  statement  to  be  yet  made,  such  bond  to  be  payable  on  demand, 
with  interest  at  £\  per  cent  per  aunum,  but  the  bond  is  to  remain  in 
our  hands,  and  not  to  be  acted  upon  for  the  recovery  of  principal  or 
interest  within  six  years  from  the  date  of  the  bond,  without  the  con- 
sent in  writing  of  us,  or  of  the  survivor  of  us ;  and,  moreover,  that  in 
case  we  or  the  survivor  of  us  shall  at  any  time  within  six  years,  by  a 
memorandum  in  writing,  direct  the  bond  to  be  delivered  up  and  can- 
celled, such  cancellation,  or  an  order  from  us  or  the  survivor  of  us  for 
that  purpose,  shall  operate  as  a  total  extinguishment  of  the  debt,  both 
as  to  principal  and  interest." 

A  bond  was  accordingly  executed  by  the  plaintiff  to  his  father,  in 
the  penalty  of  £9,000,  subject  to  the  following  condition  :  "  Whereas, 
the  said  Sir  Charles  Flower  has  agreed  to  accept  from  the  said  James 
Flower,  his  son,  the  above-written  bond  or  obligation,  with  a  con- 
dition for  payment  of  £4,500  and  interest,  as  hereinafter  mentioned, 
in  full  satisfaction  of  all  claims  and  demands  upon  him,  and  the  said 
James  Flower  has  agreed  to  enter  into  and  execute  such  bond  accord- 
ingly, but  under  the  special  understanding  and  agreement  of  both 
parties,  and  particularly  of  Sir  Charles  Flower,  that  the  said  bond 
shall  remain  in  the  hands  of  Robert  Humphrey  Marten  and  John  Petty 
Muspratt,  of  the  city  of  London,  merchants,  and  shall  not  be  acted 
upon  for  the  recovery  of  principal  or  interest  within  six  years  from 
the  date  thereof,  without  the  consent  in  writing  of  them,  or  of  the 
survivor  of  them  ;  and,  moreover,  that  in  case  they  or  the  survivor  of 
them  shall  at  any  time  within  six  years,  by  a  memorandum  in  writing, 
direct  the  said  bond  to  be  cancelled,  such  memorandum  or  cancella- 
tion shall  operate  as  a  total  extinguishment  of  the  debt,  both  as  to 
principal  and  interest."  A  condition  then  followed  for  rendering  the 
bond  void,  on  repayment  of  the  £4,500  in  1823. 

The  bond,  when  executed,  was  delivered  over  to  Mr.  Marten  and 
Mr.  Muspratt,  and  remained  in  their  hands  uncancelled  at  the  death 
of  Sir  Charles  Flower,  in  1834.  No  part  either  of  the  principal  or 
interest  appeared  to  have  been  paid  to  the  obligee  in  his  lifetime. 

This  bill  was  filed  against  the  executors  of  Sir  Charles,  and  Mr. 


SECT.  VII.]  FLOWER   V.   iLVETEN.  127 

Marten  and  Mr.  Miispratt,  by  the  plaintiff  (Sir  James  Flower),  to 
obtain  the  opinion  of  the  court,  and  the  plaintiff,  by  the  bill,  insisted 
that  the  purposes  for  which  the  bond  had  been  given  had  been  satisfied, 
and  prayed  that  it  might  be  delivered  up. 

Mr.  Muspratt  and  Mr.  Marten  were  examined  on  behalf  of  the 
plaintiff,  who  deposed  to  the  above  facts,  and  particularly  that  Sir 
Charles,  m  conversation  held  after  the  arrangement,  expressed  himself 
satisfied  with  the  conduct  of  the  plaintiff,  and  that  "  his  son's  conduct 
was  everything  that  he  could  wish."  It  was  also  proved  to  have  been 
distinctly  understood  by  the  trustees,  at  the  time  the  bond  was  exe- 
cuted, that  it  was  taken  by  Sir  Charles  from  his  son  "as  a  sort  of 
security  for  the  plaintiff's  future  good  conduct  and  economy,  and  that 
it  was  not  to  be  acted  upon  or  enforced  if  the  plaintiff's  mode  of  living 
and  behavior  were  satisfactory  to  his  father ;  and  with  those  views  they 
recommended  the  bond  to  be  taken  and  deposited  with  them." 

It  appeared  that  an  affectionate  intercourse  subsisted  between  them 
until  the  death  of  Sir  Charles,  and  by  his  will  the  plaintiff  was  made 
tenant  for  life  of  the  principal  part  of  his  very  large  property.^ 

Ml'.  Wigram  and  Mr.  Fisher,  for  the  plaintiff. 

Sir  W.  Home  and  Mr.  James,  for  the  executors  of  Sir  Charles 
Flower's  will. 

3Ir.  Geldart,  for  Messrs.  Marten  and  Muspratt. 

The  Lord  Chancellor.  In  this  case  a  large  sum  of  money  was 
advanced  by  the  plaintiff's  father  for  the  purpose  of  paying  off  the 
debts  of  Jiis  son.  That  advance  may  either  have  been  made  by  way 
of  a  gift,  or  as  a  loan  to  the  son.  The  taking  a  security'  for  the 
amount  is,  jrrima  facie,  evidence  that  the  father  meant  originally  to 
treat  the  sum  as  a  debt ;  but  that  presumi)tion  is  capable  of  being 
explained  away  and  rebutted ;  and  even  if  the  sum  constituted  a  debt 
in  the  first  instance,  the  debtor,  according  to  the  authorities,  is  at 
liberty  to  show  tiiat  the  creditor  subsequently  altered  his  intention  and 
treated  it  as  a  gift. 

In  the  present  case,  both  circumstances  concur.  Upon  the  evidence 
of  the  gentlemen  with  whom  the  bond  .was  deposited,  1  cannot  suppose 
tliat  the  father  intended  to  treat  the  money,  which  he  advanced  on  his 
son's  behalf,  as  being,  at  all  events,  a  debt.  He  plainly  meant  to  keep 
alive  the  security  for  a  time,  as  a  means  of  controlling  and  inlluencing 
the  conduct  of  his  son  ;  and  that  was  the  main  object  of  the  instru- 
ment, to  which  the  securing  of  the  sum  advanced  was  only  collateral 
and  Hul)sidiary  ;  but  it  does  not  npi>ear  from  the  testimony  of  the 
referees  tiiat  tlie  father  ever  actually  dealt  with  the  bond  as  creating 
a  debt,  or  as  forming  a  part  of  his  assets. 

With  respect  to  the  six  years  during  which  the  referees  hiul  the 
power  of  ehtirely  discharging  the  obligation  by  executing  a  niemoran- 

'  The  statement  of  factH,  iis  given  in  6  L.  .1.  Eq.  n.  fi.  167,  has  heen  snhstitnted 
for  th.-it  in  the  report  ]>y  Mylnc  &  Craig,  and  the  arguments  of  couubcI  liavc  been 
emitted.  —  Ed. 


128  FLOWER   V.    MARTEN.  [CHAP.  I. 

duin  to  that  otYoct.  the  father  had  delegated  that  discretion  to  them  as 
two  of  his  coiitideutial  friends ;  and  the  discretion  was  wholly  incon- 
sistent with  the  notion  that  the  bond  was  given  merely,  or  principally, 
to  secnre  the  repayment  of  a  sum  of  money.  Within  that  period, 
events  had  taken  place  which,  as  the  referees  themselves  state,  induced 
them  to  tliink  that  the  claim  >vas  no  longer  available  :  the  father  and 
son  were  completely  reconciled  and  united  ;  and  the  conduct  of  the  son 
throughout  had  been  highly  satisfactory  to  the  father.  Now,  if  the 
events  took  place  which  would  render  it  the  duty  of  the  referees  to 
exercise  the  trust  reposed  in  them  by  indorsing  upon  the  bond  the  pro- 
posed memorandum,  of  which  the  etfect  w'ould  be  to  avoid  the  security 
and  discharge  the  debt  at  law,  the  situation  of  the  plaintiff  cannot,  in 
a  court  of  equity,  be  affected  by  their  omission  to  do  that  which  they 
ought,  under  the  circumstances,  to  have  done. 

That,  of  itself,  would  be  a  sufficient  ground  on  which  to  rest  the 
plaintiff's  title  to  relief.  But  there  is  also  another  ground,  to  be  de- 
duced from  the  principles  which  were  distinctly  laid  down  in  the  cases 
of  Wekett  -y.  Raby  ^  and  Pxlen  v.  Smyth  ;  ^  namely,  that  whether  this 
obligation  constituted  a  debt  or  not,  either  originally  or  during  the 
continuance  of  the  prescribed  period,  the  father  subsequently  did  not 
intend  that  it  should  be  treated  as  a  debt  due  from  his  son  to  his  own 
estate,  and  be  put  in  force  accordingly.  Nearly  six  years  elapsed 
after  these  two  gentlemen  ceased,  according  to  the  letter  of  the  con- 
dition, to  have  any  authority  or  control ;  nevertheless,  throughout  the 
whole  of  that  period  the  father  left  the  bond  in  their  hands,  and 
treated  his  son  In  a  manner  expressive  of  his  entire  reconciliation  and 
satisfaction  with  him,  and  showing  that,  the  object  of  the  transaction 
having  been  attained,  he  understood  and  considered  the  instrument  as 
no  longer  subsisting  and  in  force. 

Both  points  seem  to  me  to  concur  in  the  present  case.  Upon  the 
evidence,  I  think  that  the  bond  was  not,  in  the  first  instance,  intended 
to  operate  as  a  debt  at  all  events.^  At  any  rate,  the  father,  by  his 
subsequent  conduct  and  his  mode  of  dealing,  showed  that  he  did  not 
mean  it  should  now  so  operate,  but  that,  in  fact,  he  abandoned  any 
claim  in  respect  of  it.* 

1  2  Bro.  P.  C.  386,  Toml.  ed.  2  5  Ves.  341. 

8  A  collateral  agreement  that  a  bond  or  other  specialty  shall  not,  in  a  certain  event, 
be  enforceable,  will,  upon  the  happening  of  the  event,  warrant  an  injunction  against 
an  action  at  law,  or  it  may  be  pleaded  as  an  equitable  defence  to  such  an  action,  and 
is  of  course  a  bar  to  a  suit  in  equity.  Ward  v.  Lant,  Prec.  Ch.  182;  Platamone  v. 
Staple,  G.  Cooper,  250;  Major  v.  Major,  1  Dlcw.  165;  Peace  y.  Haines,  11  Hare,  151, 
153;  Feltz  v.  Walker,  49  Conn.  93;  Pobson  ?•.  Jones,  3  Del.  Ch.  51,90;  Nichol  v. 
Nelson,  18  N.  Y.  W.  D.  210;  Franc  v.  Dickinson,  52  Hun,  373  (acmhk);  Long  v. 
Cross,  5  Jones,  Eq.  323;  Hartzell  v.  Reiss,  1  Binq.  289;  Bown  v.  Morange,  108  Pa. 
69.  — Ed. 

*  A  creditor  may  extinguish  his  claim,  without  consideration,  either  by  a  release 
under  seal,  or,  in  the  case  of  a  common  law  or  mercantile,  specialty,  by  a  surrender  or 
destruction  of  the  instrument  of  obligation.    But  a  gratuitous  parol  forgiveness  of 


SECT.  VII.]  '    MORGAN   V.   MALLESON.  129 

Under  such  circumstances,  the  authority  of  the  cases  referred  to 
sufficiently  establishes  the  jurisdietiou  of  the  Court  to  deal  with  the 
iustrumeut  in  question.  There  must,  therefore,  be  a  decree  that  the 
bond  be  delivered  up  to  be  cancelled. 


MORGAN  V.   MALLESON. 
In  Chancery,  before  Sir  John  Romilly,  M.R.,  July  26,  28,  1870. 

[Reported  in  Laiv  Reports,  10  Equity,  475.] 

The  following  memorandum  was  given  by  John  Saunders,  the  tes- 
tator in  the  cause,  to  his  medical  attendant.  Dr.  Mon-is  :  — 

"  I  hereby  give  and  make  over  to  Dr.  Morris  an  India  bond,  No.  D., 
506,  value  £1,000,  as  some  token  for  all  his  very  kind  attention  to  me 
during  illness. 

"  Witness  my  hand,  this  1st  day  of  August,  1868, 

(Signed)  "  John  Saunders." 

The  signature  was  attested  by  two  witnesses,  and  the  memorandum 
was  handed  over  to  Dr.  IMorris,  but  the  bond,  which  was  transferable 
by  delivery,  remained  in  the  possession  of  Saunders.  There  was  no 
consideration  for  it. 

Saunders  died  more  than  a  year  afterwards,  having  by  his  will  be- 
queathed the  residue  of  his  personal  estate  to  charities.  A  suit  was 
instituted  for  the  administration  of  his  estate,  and  a  summons  was 
taken  out  by  the  Attorney  General  on  behalf  of  absent  charities  for 
the  direction  of  the  court  on  the  question  whether  this  memorandum 
was  or  was  not  a  valid  declaration  of  trust  in  favor  of  Dr.  Morris. 

a  debt  is  inoponilivc,  both  in  eiiuity  and  at  law.  Tufncll  ?•.  Constable,  8  Sim.  69; 
Cross  r.  Spring,  6  Ilare,  .552;  Peace  v.  Ilainos,  11  Ilarc,  l.'il  ;  Knapp  v.  Burnaby,  8 
W.  R.  .30.'};  Taylor  v.  Mannors,  1  Ch.  Ap.  48,  5.5  (semlile) ;  Strong  v.  Bird,  18  Eq.  ;n5 
{semhip);  Re  Milnoa  (fli.  I).),  .5.3  L.  T.  Hop.  .5.34  ;  WoHtnKjrtdand  v.  Porter,  75  Ala. 
452;  liobson  v.  Jones,  3  Del.  Ch.  51  ;  Adani.son  v.  Lamb,  .3  Blackf.  446;  Denman  v. 
Mc.Malin,  37  Tnd.  241  ;  Webber  v.  Conch,  134  M.a.s.'^.  20;  Irwin  v.  Johnson,  30  N.  J. 
E(j.  347  (overruling  I.eddel  r.  Starr,  20  N.  J.  V.q.  274)  ;  Traj)hagen  r.  Voorliecs,  44 
N.  J.  Eq.  21  {semblf)  ;  Tnlane  v.  Clifton,  47  N.  J.  Eq.  351  ;  Whitebill  r.  Wilson,  3  Pen. 
&  W.  405,  413;  Keimedy  »;.  Ware,  1  Barr,  445  (di.screditing  Went/,  r.  Do  II;iven,  1  S. 
&  U.  312);  Re  Camjibell,  7  P.arr,  100,  101  ;  .MeCiuirc  v.  Ailanis,  8  Barr,  280;  Kidder 
V.  Kidder,  .33  Pa.  20S  ;  Ilurncr's  App.,  2  Pennyp.  2S9  ;  Ewing  ;;.  Ewing,  2  Eeigh,  337. 

But  He*!,  rnritrn,  Green  v.  Langdon,  28  Miih.  221  ;  Gray  v.  Barton,  55  N.  Y.  68; 
Ferry  v.  Stephens,  66  N.  Y.  321  ;  Carpenter  v.  Sonlo,  88  N.  Y.  251  ;  in  whiih  ca.se8  it 
wa.H  held  th;it  a  written  receij)t  of  payment,  though  gratuitons,  extingnishes  the  claim 
where  extinguishment  by  surrender  is  impr.acticable ;  c.  g.  where  the  claim  is  not  in 
writing,  or  where  it  is  desirf>d  to  forgive  only  a  part  of  a  bond  or  other  specialty. 

See  I-'den  v.  Smith,  5  Ves.  341  (explained  in  Koevcs  v.  Bryan,  6  Ves.  516);  Yeo- 
man V.  Williani.s,  1  Ei|   184  — Ed. 

9 


130  RICHARDS   V.   DELBRIDGE.  [CHAP.  I. 

Mr.  Tr/fA'CH.s,  for  the  Attorney  General. 
Mr.  Jessel^  Q-  C,  and  Mr.  Speedy  for  Dr.  Morris.* 
July  28.  Lord  Romilly,  M.R.  I  am  of  opinion  that  the  paper 
writing  signed  by  Saunders  is  equivalent  to  a  declaration  of  trust  in 
favor  of  Dr.  Morris.  If  he  had  said,  "  I  undertake  to  hold  the  l)ou<l 
for  you,"  or  if  he  had  said,  "  I  hereby  give  and  make  over  the  bond 
in  the  hands  of  A.,"  that  would  have  been  a  declaration  of  trust, 
though  there  had  been  no  delivery.  This  amounts  to  the  same  thing; 
and  Dr.  Morris  is  entitled  to  the  bond,  and  to  all  interest  accrued  due 
thereon.* 


RICHARDS   V.   DELBRIDGE. 
In  Chancery,  before  Sir  G.  Jessel,  M.R.,  April  16,  1874. 

[Reported  in  Law  Reports,  18  -Equity,  11.] 

Demurrer.  The  bill,  filed  by  Edward  Bennetto  Richards,  an  infant, 
by  his  next  friend,  stated  that  John  Delbridge,  deceased,  was  possessed 
of  a  mill,  with  the  plant,  machinery,  and  stock  in  trade  thereto  belong- 
ing, in  which  he  carried  on  the  business  of  a  bone  manure  merchant, 
and  which  was  held  under  a  lease  dated  the  24th  of  June,  1863. 

^  The  arguments  of  counsel  are  omitted.  —  Ed. 

2  Bridge  v  Bridge,  16  Beav  31.5,  326,  327  :  Trimmer  ?;  Danbv,  25  L.  J  Ch  424  ; 
Connor  v.  Trawick,  37  Ala.  289  :  Peters  t>  Fort  Maili.son  Co  ,  72  Iowa,  405  .  Young  v. 
Young,  80  N.  Y.  422  ,  Re  Crawford,  113  N.  Y.  560,  Flanders  v  Blandy,  45  Oh.  St. 
108  Contra. 

In  Warriner  v.  Rogers,  L.  R.  16  Eq  340,  Bacon,  V.  C.  said,  p  348  "  If  it  were 
necessary,  but  I  do  not  think  it  is,  to  go  further  into  the  case  of  Morgan  v.  Malleson, 

I  should  require  to  examine  it  and  consider  the  facts  much  more  closely  than  I  now 
think  it  neces.sary  to  do  in  order  to  determine  what  the  real  l)earing  of  that  case  is.  I 
am  strongly  inclined  to  believe  that  there  must  be  some  imperfection  in  the  report  of 
it,  because  -what  staggers  me  most  is  to  find  that  tiie  decision  as  it  stands  would  seem 
to  establish  that  if  a  man  writes  a  letter  to  say,  '  I  have  given  '  a  bank-note,  or  an 
Indian  bund,  or  anything  else,  '  to  A.  B.,'  and  no  more,  and  retains  the  bank-note  or 
bond  and  the  memorandum  in  his  own  possession,  that  letter  has  a  valid  operation  as 
between  himself  and  A.  B.  If  that  were  all  that  appeared  in  the  case,  I  should 
certainly  consider  such  a  letter  to  be  a  mere  nullity."  —  Ei>. 

A  deed  of  gift  of  a  chattel  vests  the  title  in  the  donee  without  delivery  Y.  B  7 
Ed.  IV.  f.  20,  pi.  21  ;  Butler  and  Baker's  Case,  3  Rep.  26  b,  Shep  Touch.  285; 
Thompson  v  Leach,  2  Vent.  198,  203;  Wankford  v.  Wankford,  1  Salk.  299.  .301; 
Irons  V.  Smallpiece,  2  B.  &  Al.  551 ;   Ward  v  Audlaud,  8  Beav.  201  ,  Hope  v.  Harman, 

II  Jur.  1097  ,  Lunn  v.  Thornton,  1  C  B.  379,  381 ;  Cochrane  v.  Moore,  25  Q.  B  Div. 
57,  67,  72 ;  McCutchen  v  McCutchen,  9  Port.  650 ;  Banks  /;.  Marksberry,  3  Litt. 
275  ,  Baxter  v.  Bailey,  8  B.  Mon.  336  ,  Bunn  v.  Winthrop,  1  Johns.  Ch.  329;  Fulton 
V.  Fulton,  48  Barb.  581,  590,  Duncan  v  Self,  1  Murph.  466.  Jaggers  v.  Estes,  3 
Strob.  Eq  379  ;  Carries  v.  Marley,  2  Yerg.  582  ;  Ilillebrant  v.  Brewer,  6  Tex.  45,  51 ; 
Hogue  >'  Bierne,  4  W  Va.  658  (sfunhle). 

But  see,  contra,  Mc  Willie  v.  Van  Vacter,  35  Miss.  428,  —  Ed. 


SECT.  VII.]  RICHARDS   V.   DELBRIDGE.  131 

That  on  the  7th  of  March,  1873,  John  Delbridge  indorsed  upon  the 
lease  and  signed  the  following  memorandum  :  — 

"  7th  March,  1873.  This  deed  and  all  thereto  belonging  I  give  to 
Edward  Bennetto  Richards  from  this  time  forth,  with  all  the  stock  in 
trade. 

"John  Delbridge." 

That  the  plaintiff  was  the  person  named  in  the  memorandum,  and 
the  grandson  of  John  Delbridge,  and  had  then  for  some  time  assisted 
him  in  the  business  ;  that  John  Delbridge,  shortly  after  signing  the 
memorandum,  delivered  the  lease  on  his  behalf  to  Elizabeth  Ann  Rich- 
ards, the  plaintiff's  mother,  who  was  still  in  possession  thereof. 

That  John  Delbridge  died  in  April,  1873,  having  executed  several 
testamentary  instruments  which  did  not  refer  specifically  to  the  said 
mill  and  premises,  but  gave  his  furniture  and  effects,  after  his  wife's 
death,  to  be  divided  among  his  family. 

That  the  testator's  widow,  Elizabeth  Richards,  took  out  administra- 
tion to  his  estate,  with  the  testamentary  papers  annexed. 

The  bill,  which  was  filed  against  the  defendants,  P>lizabeth  Del- 
bridge,  Elizabeth  Ann  Richards,  and  the  testator's  two  sons,  wh^ 
claimed  under  the  said  testamentary  instruments,  prayed  a  declaration 
that  the  indorsement  upon  the  lease  by  John  Delbridge  and  the  deliv- 
ery of  the  lease  to  Elizabeth  Ann  Richards  created  a  valid  trust  in 
favor  of  the  plaintiff  of  the  lease  and  of  the  estate  and  interest  of 
John  Delbridge  in  the  property  therein  comprised,  and  in  the  good  will 
of  the  business  carried  on  there,  and  in  the  implements  and  stock  in 
trade  belonging  to  the  business. 

The  defendants  demurred  to  the  bill  for  want  of  equity. 

Mr.  Fry,  Q,  C,  and  Mr.  Phcar,  in  support  of  the  demurrer.' 

Mr.  W.  R.  Fisher,  (Mr.  Sou(hr/ate,  Q.  C,  with  him,)  for  the  plaintiff. 

Sir  Ci.  Jessef-,  IM.R.  This  l)ill  is  warranted  b^'  the  decisions  in 
Ricliardson  v.  Richardson  and  Morgan  /;.  Malleson  ,  but,  on  the  other 
hand,  we  have  tiie  case  of  Milroy  ?;.  Lord,  before  the  Court  of  Appeal, 
and  the  more  recent  case  of  Warriner  v.  Rogers,^  in  wliich  Vice  Chan- 
cellor Hacon  said  :  "  Tiie  rule  of  law  upon  this  sul)jeet  I  take  to  be  very 
clear,  and  with  the  oxcoption  of  two  csises  which  have  been  referred  to" 
(Richard.son  i:.  Richardson  and  Morgan  v.  jNIalleson),  "  the  decisious 
are  all  i)erfectly  consistent  with  that  rule.  The  one  thing  necessary 
to  give  validity  to  a  declaration  of  trust  —  the  indispensable  thing  — 
T  take  to  be,  that  the  donor,  or  grantor,  or  whatever  he  may  bi;  called, 
should  liavn  absolutely  parted  with  that  uiterest  which  had  liccn  his  up 
to  the  time  of  the  declaration,  slioiiM  liave  effectually  changed  his  right 
in  that  respect,  and  put  the  property  out  of  his  power,  at  least  in  the 
way  of  interest." 

1  Tlio  art^iimnnts  of  roiinsol  li.ivo  l)ccu  omitted.  —  Ed. 

2  Law  Kcp   16  Eq  340,-348. 


132  RICHARDS   V.   DELBRIDGE.  [CHAP.  L 

The  two  first  mentioned  eases  are  wholly  opposed  to  the  two  last. 
That  being  so,  I  am  not  at  liberty  to  decide  the  case  otherwise  than  in 
accordance  with  the  decision  of  the  Court  of  Appeal.  It  is  true  the 
judges  appear  to  have  taken  different  views  of  the  construction  of  cer- 
tain expressions,  but  I  am  not  bound  by  another  judge's  view  of  the 
construction  of  particular  words  ;  and  there  is  no  case  in  which  a  differ- 
ent principle  is  stated  from  that  laid  down  by  the  Court  of  Appeal. 
^Moreover,  if  it  were  my  duty  to  decide  the  matter  for  the  first  time,  I 
sliould  lay  down  the  law  in  the  same  way. 

The  principle  is  a  very  simple  one.  A  man  may  transfer  his  property, 
without  valuable  consideration,  in  one  of  two  ways :  he  may  either  do 
such  acts  as  amount  in  law  to  a  conveyance  or  assignment  of  the  prop- 
erty, and  thus  completely  divest  himself  of  the  legal  ownersliip,  in 
which  case  the  person  who  by  those  acts  acquires  the  property  takes  it 
beneficially,  or  on  trust,  as  the  case  may  be  ;  or  the  legal  owner  of  the 
property  may,  by  one  or  other  of  the  modes  recognized  as  amounting  to 
a  valid  declaration  of  trust,  constitute  himself  a  trustee,  and,  without 
an  actual  transfer  of  the  legal  title,  may  so  deal  with  the  property  as  to 
deprive  himself  of  its  beneficial  ownership,  and  declare  that  he  will  hold 
it  from  that  time  forward  on  trust  for  the  other  person.  It  is  true  he 
fieed  not  use  the  words,  "  I  declare  myself  a  trustee,"  but  he  must  do 
something  which  is  equivalent  to  it,  and  use  expressions  which  have 
that  meaning ;  for,  however  anxious  the  court  may  be  to  carry  out  a 
man's  intention,  it  is  not  at  liberty  to  construe  words  otherwise  than 
according  to  their  proper  meaning. 

The  cases  in  which  the  question  has  arisen  are  nearly  all  cases  in 
which  a  man,  by  documents  insufficient  to  pass  a  legal  interest,  has 
said,  "  I  give  or  grant  certain  property  to  A.  B."  Thus,  in  Morgan  v. 
Malleson  the  words  were,  "  I  hereby  give  and  make  over  to  Dr.  Morris 
an  India  bond  "  ;  and  in  Richardson  v.  Richardson  the  words  were, 
"  grant,  convey,  and  assign."  In  both  cases  the  judges  held  that  the 
w^ords  were  effectual  declarations  of  trust.  In  the  former  case.  Lord 
Romilly  considered  that  the  words  were  the  same  as  these:  "I  un- 
dertake to  hold  the  bond  for  you  "  ;  which  would  undoubtedly  have 
amounted  to  a  declaration  of  trust. 

The  true  distinction  appears  to  me  to  be  plain,  and  beyond  dispute ; 
for  a  man  to  make  himself  a  trustee,  there  must  be  an  expression  of 
intention  to  become  a  trustee,  whereas  words  of  present  gift  show  an 
intention  to  give  over  property  to  another,  and  not  retain  it  in  the 
donor's  own  hands  for  any  purpose,  fiduciary  or  otherwise. 

In  Milroy  v.  Lord,  Lord  Justice  Turner,  after  referring  to  the  two 
modes  of  making  a  voluntary  settlement  valid  and  effectual,  adds  these 
words:  "The  cases,  I  think,  go  further,  to  this  extent,  that  if  the 
settlement  is  intended  to  be  effectuated  by  one  of  the  modes  to  which  I 
have  referred,  the  court  will  not  give  effect  to  it  by  applying  another  of 
those  modes.  If  it  is  intended  to  take  effect  by  transfer,  the  court  will 
not  hold  the  intended  transfer  to  operate  as  a  declaration  of  trust,  for 


SECT.  VII.]  COLMAN   V.   BARREL.  133 

then  every  imperfect  iustruruent  would  be  made  eflfectual  by  being  con- 
verted into  a  perfect  trust." 

It  appears  to  me  that  that  sentence  contains  the  whole  law  on  the 
subject.  If  the  decisions  of  Lord  Romilly  and  of  Vice  Chancellor  Wood 
were  right,  there  never  could  be  a  case  where  an  expression  of  a  present 
gift  would  not  amount  to  an  effectual  declaration  of  trust,  which  would 
be  carrying  the  doctrine  on  that  subject  too  far.  It  appears  to  me  that 
these  cases  of  voluntary  gifts  should  not  be  coafounded  with  another 
class  of  cases  in  which  words  of  present  transfer  for  valuable  considera- 
tion are  held  to  be  evidence  of  a  contract  which  the  court  will  enforce. 
Applying  that  reasoning  to  cases  of  this  kind,  you  only  make  the  nn- 
perfect  instrument  evidence  of  a  contract  of  a  voluntary  nature,  which 
this  court  will  not  enforce  ;  so  that,  following  out  the  principle  even  of 
those  cases,  you  come  to  the  same  conclusion. 

I  must,  therefore,  allow  the  demurrer,  and,  though  I  feel  some  hesita- 
tion, owing  to  the  conflict  of  the  authorities,  I  think  the  costs  must 
follow  the  result.^ 


COLMAN  V.   SARREL. 

In  Chanceky,  before  Lord  Tiiurlow,  C,  November  10,  13,  16, 

1789. 

[Reported  in  1  Vesey,  Jr.,  50.] 

George  Davy,  11th  June,  1767,  assigned  by  deed  to  trustees  £1,000 
three  per  cent  bank  annuities  in  trust  for  Joan  Sarrel  for  life,  in  case 
she  should  survive  him  ;  and  after  her  death  for  such  child  or  children 
of  her,  and  in  such  projjortions,  as  she  should  api)oint;  with  a  proviso, 
if  she  should  live  in  any  other  place  than  that  in  which  the  grantor 
should  reside,  to  be  void,  but  not  otherwise.  The  deed  contained  a 
covenant  by  liim,that,  if  he  should  survive  her,  he  would  pa3'  the  inter- 
est and  dividends  to  such  of  her  children,  and  in  such  proportions,  as 
she  should  ai)point  the  principal.  At  tlie  linu;  of  the  deed,  liis  wife  and 
her  husband  were  living.  The  consideration  expressed  in  the  deed  was 
for  some  satislaction  for  the  injuries  the  grantee  had  received  from  the 
wife  of  the  grantor.  No  a(ttnal  tninsfer  of  the  stock  ever  look  place. 
Joan  Sarrel,  having  survived  the  grantor,  api)ointed  by  will  i'GUU  of  this 
fund  to  one  child,  and  £200  each  to  two  others.  Colman,  as  executor 
of  the  grantor,  filed  a  bill  to  have  the  deed  delivered  up,  as  being  vol- 
untary. The  children  filed  a  cross-bill  to  have  the  deed  carried  into 
execution  by  a  (l(!cree  ujKin  the  exec;utor  to  IransfcM"  Die  stock  to  their 
trustees.  IJy  the  evidence  of  i)laintiir  in  the  original  bill  it  appeared 
that  the  witness  had  gone  into  a  room,  in  which  he  found   Davy,  his 

•  IJridge  V.  r.riflfje,  10  P.rav.  315;  W.irrinor  v.  Rogors,  L  K.  IG  V.q.  .340,  per 
Bacon,  V.  C.  (semble) ;  rethybridge  v  Burrow  (C.  A.),  53  L.  T.  Rep.  5  .Accord.  —Ed. 


/ 


134  COLMAN   V.   SAraiEL.  [CUAP.  I. 

wife,  aiul  Mrs.  Sarrel ;  that  Mrs.  Davy  liatl  hor  band  to  her  head  as  if 
she  had  received  a  blow,  and  eoinplained  to  tlie  witness  that  lier  hus- 
band had  beaten  her  ;  that  at  tlie  time  of  tlie  execution  of  the  deed  Mrs. 
Sarrel  had  threatened  to  kill  him,  had  pursued  him  through  the  town 
with  a  knife,  and  had  said  she  had  i)urchased  a  shroud  for  him.  la 
1770,  lie  applied  for  a  supplicavit  against  her,  and  she  was  bound  ac- 
cordingly. He  resisted  this  deed  in  his  life,  when  threatened  with  a 
suit  upon  it. 

3Ir.  Mansfield  and  Mr.  Grimioood,  for  the  plaintiffs  in  the  cross-bill. 
It  is  not  a  mere  voluntary  agreement,  but  a  voluntary  gift  of  stock, 
not  to  take  place  till  after  his  death  ;  and  therefore  they  are  in  the 
same  situation  as  legatees  of  stock.  The  consequence  is,  that  his  ex- 
ecutors at  his  death  became  trustees  under  this  voluntary  gift  for  the 
persons  to  whom  it  is  given  ;  as  they  would  have  been  if  he  had  given 
it  bj'  his  \Yill.  Then  there  is  a  covenant  in  the  deed  which  creates  a 
debt ;  and  the  part}'  comes  to  be  paid  out  of  the  assets  as  for  any  other 
debt.  P>ither  an  action  of  debt  or  covenant  would  lie ;  but  the}'  come 
into  this  Court  in  the  common  way.  It  is  not  a  case  for  making  perfect 
a  defective  voluntary  agreement ;  but  here  is  a  deed  under  seal  convey- 
ing to  trustees.     It  is  an  equitable  gift  instead  of  a  legal  one. 

LoKD  Chancellor.  If  you  have  it  at  law,  there  is  an  end ;  if  not, 
the  question  is,  whether  you  can  luu'e  a  voluntary  agreement  executed 
in  equity.^  The  difficulty  is  to  show  a  case  where  any  voluntary  gift 
has  been  executed  in  equity.  You  are  now  upon  a  question  whetlier  a 
court  of  equity  will  set  up  a  deed  you  canijot  proceed  upon  at  law.' 

Solicitor  General  and  Mr.  Cooke,  for  defendants  in  the  cross-bill. 

Lord  Chancellor.  If  you  can  bring  an  action,  you  may.  The 
covenant  seems  to  be  but  in  aid  of  the  form  of  the  transfer.  The  only 
case  coming  near  it  is  that  in  Vesey,  but  it  is  not  so  clear  a  case  that  a 
court  of  equity  wall  take  it  out  of  the  hands  of  a  jury.  Where  a  deed 
is  not  sufficient  in  truth  to  pass  the  estate  out  of  the  hands  of  the  con- 
veyer, but  the  party  must  come  into  equity,  the  court  has  never  yet 
executed  a  voluntary  agreement.  To  do  so  would  be  to  make  him 
who  does  not  sufficiently  convey,  and  his  executors  after  his  death, 
trustees  for  the  person  to  whom  he  has  so  defectively  conveyed  ;  and 
there  is  no  case  where  a  court  of  equity  has  ever  done  that./AVIien- 
ever  }ou  come  into  equity  to  raise  an  interest  by  way  of  trust,  you 
must  have  a  valuable,  or  at  least  a  meritorious  consideration.  Noth- 
ing less  will  do.* 


*D 


1  Lord  Thurlow  dismissed  the  original  bill.  The  arguments  and  opinion  relating 
thereto,  as  well  as  the  discussion  of  the  question  of  costs,  are  omitted.  —  Ed. 

2  Equity  will  not  decree  performance  of  such  an  agreement.  Tatham  v.  Vernon, 
29  Beav.  604.  — Ed. 

3  The  rest  of  the  argument  of  the  plaintiff  is  omitted.  Villars  v.  Beaumont,  1  Vern. 
100 ;  Boughton  v.  Boughton,  1  Ati<.  G2.'),  1  Vern.  36.5  ;  Lechmcre  v.  Earl  of  Carlisle, 
3  P.  Wms.  222;  Williamson  v.  Codrington,  1  Ves.  514  ;  Watts  v.  BuUas,  1  P.  Wms. 
60,  were  cited.  —  Ed. 

*  1  Font.  Treat.  Eq.  41 ;  Ellison  v.  Ellison,  6  Ves.  656. 


SECT.  VII.]  SLOANE   V.    CADO*AIS\  135 

The  decree  was,  "  that  the  original  bill  should  be  dismissed  without 
costs  ;  that  the  cross-bill  should  be  retained  twelve  months,  during 
which  time  the  plaintiffs  in  it  should  be  at  libert}-  to  bring  an  action 
upon  giving  security,  to  be  approved  b\'  a  master,  to  answer  the  costs 
of  it ;  on  non-compliance  with  these  terms,  the  bill  at  the  end  of  the 
year  to  stand  dismissed,  with  costs." 

The  plaintiffs  in  the  cross-bill  did  nothing  till  the  1st  November,  1790, 
when  they  applied  to  have  the  time  for  bringing  the  action  enlarged  for 
six  months  ;  which  the  Lord  Chancellor  thought  reasonable,  and  ordered. 
Upon  that  order  the}'  commenced  the  action  without  giving  securit}'  for 
the  costs.  Upon  the  11th,  Mr.  Mitford  moved  to  amend  the  minutes  of 
the  last  order  by  inserting  the  terms  contained  in  the  decree ;  and  the 
Lord  Chancellor  granted  the  motion,  declaring  he  meant  not  to  dis- 
charge the  terms  when  he  enlarged  the  time. 


SLOANE  V.   CADOGAN. 
In  Chancery,  before  Sir  William  Grant,  M,  R.,  December,  1808. 

[Reported  in  Sugden,  3  Vendors  and  Purchasers  (lOlh  ed.),  Appendix,  66.] 

i 

William  B.  Cadogan,  being  entitled  to  an  equitable  reversionary 
interest  in  one  fourth  share  of  a  fund  of  £20,000,  by  an  indenture  bear- 
ing date  the  2Gth  May,  1798,  assigned  his  interest  to  four  trustees, 
upon  trust,  first,  for  himself  for  life ;  secondly,  for  his  wife,  the  plain- 
tiff, for  life  ;  thirdly,  after  the  death  of  the  survivor,  for  their  issue ; 
fourthly,  in  default  of  such  issue,  for  such  persons  as  he,  AVilliam, 
should  l)y  deed  or  will  appoint ;  and,  fifthly,  in  default  of  appoint- 
ment, for  Earl  Cadogan,  the  father  of  William.  The  indenture  also 
gave  to  William  and  his  wife  a  joint  power  of  revoking  the  trusts  thus 
created. 

There  was  no  child  of  tlic  marriage  between  tlie  testator  and  his 
wife.  Tlie  testator  did  not,  in  his  lifetime,  in  any  manner  execute 
his  general  power  of  appointment  in  the  indenture  of  2Cth  May, 
178.",  [1798?],  or  his  power  of  appointment  of  the  said  sum  of  £1,000, 
unless  by  his  will  ;  nor  did  he,  togetiier  with  the  plaintiff,  execute  their 
joint  power  of  revocation  therein  contained. 

The  plaintiff  claimed,  under  a  jjrovision  in  licr  luisl)and's  will,  to  be 
entitled  U)  one  fotirth  i)art  of  tlie  £20,000,  and  the  bill  was  filed 
against  the  executors  of  the  Earl  of  Cadogan  to  establish  her  right. 

The  defendants,  in  their  answer,  claimed  to  l)e  entitled  to  tlu;  whole 
of  the  fourth  share  of  the  said  William  liromley  Cadogan,  subject  to 

'  Klli.ton  r.  Kllison,  0  V'cs.  6.'>r,  (semble) ;  Pulvertoft  v.  Pulvertoft,  18  Ve8.  89 
Accord.  —  Ed. 


136  FOllTESCUE  V.   BARNETT.  [CHAP.  L 

the  phiiiUitT's  right  to  the  interest  for  her  life  under  the  indenture  of 
2Gth  of  May,  1783.' 
uVr.  Eicliards^  Mr.  Stejihen^  Mr.  Boivdler,  and  3fr.  Sugden^  for  the 

plaintiff. 

Sir  Samuel  Eomilhj  and  Mr.  Raithby,  for  the  defendants. 

2[r.  Richards,  in  reply. 

Master  of  the  Rolls,  having  taken  time  to  consider.  Two  points 
were  made  on  the  part  of  the  plaintiff:  1st,  that  it  was  not  necessary 
that  the  husband  should  execute  the  power;  but,  2dly,  if  it  was, 
that  his  will  did  amount  to  an  execution  of  it.*  As  to  the  first,  it  Avas 
said  that  the  gift  to  Lord  Cadogan  was  merely  voluntary,  and  Lord 
C.  could  not  have  had  any  assistance  from  this  Court :  that  the  ques- 
tion is  the  same  as  if  the  representatives  were  parties  seeking  relief, 
as  the  circumstance  of  his  executors  having  the  money  makes  no  dif- 
ference, and  I  think  that  that  circumstance  is  immaterial.  But,  as 
against  the  party  himself  and  his  representatives,  a  voluntary  settle- 
ment is  binding.  The  Court  will  not  interfere  to  give  perfection  to 
the  instrument,  but  you  may  constitute  one  a  trustee  for  a  volunteer. 
Here  the  fund  was  vested  in  trustees.  Mr.  W.  Cadogan  had  an  equi- 
table reversionary  interest  in  that  fund,  and  he  has  assigned  it  to  cer- 
tain trustees ;  and  then  the  first  trustees  are  trustees  for  his  assigns, 
and  they  may  come  here,  for  when  the  trust  is  created  no  consideration 
is  essential,  and  the  Court  will  execute  it,  though  voluntary. 

The  bill  must  be  dismissed  as  to  this  fund. 


FORTESCUE  v.   BARNETT. 
In  Chancery,  before  Sir  John  Leach,  M.  R.,  January  20,  1834. 

[Reported  in  3  Mylne  ^  Keen,  36.] 

The  defendant,  John  Barnett,  shortly  after  the  intermarriage  of  his 
sister,  INIary  Barnett,  with  Henry  White,  executed  an  indenture  dated 
the  17th  of  December,  1813,  and  made  between  himself  of  the  first 
part,  the  said  Henry  AVhite,  since  deceased,  of  the  second  part,  Mary 
Wliite,  the  wife  of  Henry  White,  of  the  third  part,  and  the  plaintiff, 
William  Fortescue,  and  Thomas  White,  deceased,  of  the  fourth  part, 
whereby,  after  reciting  that  the  Equitable  Assurance  Society  had,  by  a 
policy  of  assurance  dated  the  27th  of  September,  1811,  assured  to  be 
paid  to  the  executors,  administrators,  and  assigns  of  John  Barnett,  after 
his  decease,  £1,000,  on  payment  of  the  annual  premium  of  £25  lis.,  it 

1  This  BTimmary  of  the  facts  is  substituted  for  the  much  fuller  statement  in 
Sngflen.     The  arguments  of  counsel  are  also  omitted.  —  En. 

2  The  Master  of  the  Rolls  held  that  the  will  did  not  amount  to  an  execution  of  the 
power.     So  much  of  the  case  as  relates  to  this  point  is  omitted.  —  Ed. 


SECT.  VII.]  FORTESCUE   V.   BARNETT.  137 

was  witnessed  that,  in  consideration  of  the  marriage  then  lately  sol- 
emnized between  Henry  White  and  Mary  White,  and  for  making  some 
provision  for  the  said  Mary  AVhite  and  laer  child  and  children,  if  she, 
or  any  sucli  child  or  chiklren,  should  survive  John  Barnett,  he,  the 
said  John  Barnett,  assigned  and  transferred  to  AVilliam  Fortescue  and 
Thomas  White  the  said  policy  of  assurance,  and  the  sum  of  £1,000 
thereby  assured,  and  all  interest  and  produce  to  become  due  or  pay-  i 
able  by  virtue  thereof,  and  all  his  right  and  interest  therein,  to  hold 
to  William  P'ortescue  and  Thomas  White,  their  executors,  administra- 
tors, or  assigns,  upon  trust,  in  case  Mary  White  and  all  and  every  her 
child  and  children  should  happen  to  die  in  the  lifetime  of  John  Barnett, 
for  John  Barnett,  his  executors,  administrators,  and  assigns,  and  to 
reassign  the  same  to  him  and  them  accordingly ;  but  if  Mary  White, 
or  any  child  or  children  of  Mary  White,  should  happen  to  outlive  John 
Barnett,  then  in  trust  that  William  Fortescue  and  Thomas  White, 
their  executors,  administrators,  or  assigns,  should  invest  the  said  sum 
of  £1,000,  and  all  other  money  which  should  become  due  on  the  said 
policy,  in  the  public  stocks  or  funds,  upon  the  trusts  therein  declared, 
for  the  benefit  of  IMary  AVhite  and  her  child  or  children.  The  deed 
contained  a  covenant  on  the  part  of  John  Barnett,  for  himself,  his  ex- 
ecutors and  administrators,  to  pay  and  keep  up  the  annual  premiums 
payable  upon  the  policy. 

This  deed  was  delivered  to  Thomas  AYhite,  one  of  the  trustees  named 
therein,  and  remained  in  his  possession  till  his  death,  which  haijpeued 
in  October,  1832  ;  but  the  defendant,  Barnett,  retained  possession  of 
the  policy  of  assurance. 

Shortly  after  the  death  of  Thomas  White,  the  deed  was  sent  by  one 
of  his  executors  to  William  Fortescue,  the  surviving  trustee,  who.  upon 
application  at  the  office  of  the  P>quitable  Assurance  Society,  was  in- 
formed that  no  notice  had  ever  been  given  to  the  society  of  the  assign- 
ment of  the  policy  ;  that  in  July,  1.S30,  a  bonus  of  £795,  payable  upon 
the  death  of  John  Barnett,  had  been  declared  on  the  policy,  which 
bonus  was  surrcudercd  ))y  Barnett  to  the  society  in  the  same  month  of 
July,  in  consideration  of  the  sum  of  £.'304  15.s.  ;  and  that  in  Novem- 
ber, 18;52,  B>arn(,'tt  surrendered  the  policy  itself  to  the  society,  in  con- 
sideration of  th(!  further  sum  of  £326  13s. 

'I'he  bill  was  originally  filed  by  Fortescue  against  Barnett  alone,  for 
the  purpose  of  compelling  him  to  replace  or  give  security  for  the  value 
of  tlie  policy  and  bonus  so  surrendered,  and  of  all  bonuses  which 
might  have  accrued  or  have  been  capable  of  being  declared  thereafter, 
if  the  policy  had  not  been  surrendered  ;  but  the  defendant  demurred  to 
the  bill  for  want  of  parties,  and,  the  demurrer  being  allowed,  ISIrs.  ^ 
AVhitc  and  her  chililrcn  were  made  parties  by  amcmliiii'nt,  leave  ha\iug  » 
been  given  for  that  |)urpose. 

The  bill  prayed  that  the  defendant,  Barnett,  might  be  decreed  to  pay 
to  the  plaintiff,  or  otherwise  secure  upon  the  trusts  of  the  indenture  of 
the  l?tli  of  December,  1813,  the  sum  ^A  £1,795,  being  the  amount  of 


133  FORTESCUE   V.   BARNETT.  [CIIAP.  I. 

the  Sinn  secured  by  the  policy,  together  with  tlie  boans  declared 
thoreou,  aud  such  further  sum  as  should  be  sudicicnt  to  answer  all 
future  bonuses  which,  according  to  the  regulations  of  the  Equitable 
Assurance  Company,  would  have  accrued  due  in  respect  of  the  policy 
if  it  had  not  beeu  surrendered. 

The  defendant,  Barnett,  by  his  answer,  stated  that  the  settlement  of 
the  policy  was  a  mere  voluntary  act  on  his  part,  aud  made  out  of  his 
personal  regard  for  his  sister ;  aud  that  he  executed  the  settlement 
under  the  impression  that  he  should  have  the  control  of  the  policy 
during  his  life,  and  power,  if  he  thought  fit,  to  revoke  or  alter  the  dis- 
position of  the  same.  He  further  stated  that  the  policy  had  been  sur- 
rendered after  the  death  of  Mrs.  White's  husband,  and  with  her  consent, 
in  order  to  save  the  expense  of  the  annual  premium,  aud  with  the  un- 
derstanding that  the  amount  of  the  premium  should  be  annually  paid 
to  Mrs.  White,  which  had,  in  fact,  been  done.  The  defendant  further 
stated  that,  at  the  time  of  surrendering  the  policy,  he  executed  a  codi- 
cil to  his  will,  whereby  he  made  a  provision  for  Mrs.  White  and  her 
children  to  the  extent  of  £1,000,  and  that  he  put  Mrs.  White,  at  the 
same  time,  into  possession  of  a  freehold  estate  of  the  value  of  £400, 
of  which  she  had  ever  since  received  the  rents  and  profits,  and  that  he 
bad  devised  such  freehold  estate  to  her  eldest  son  by  his  will. 

The  question  in  the  cause  was,  whether  the  defendant  was  or  was 
not  lound  to  replace  or  give  security  for  the  value  of  the  policy. 

M- ,  Bickersteth  and  Mr.  Willcock,  for  the  plaintiff. i 

J/7.  Bolfe,  for  the  widow,  disclaimed  any  desire  on  her  part  to 
obtain  relief  in  this  suit,  to  which  she  was  an  unwilling  party.  The 
defendant  had  been  her  greatest  benefactor,  and  she  was  satisfied  that 
whatever  steps  he  had  taken  in  this  transaction  had  been  taken  with  a 
view  to  her  benefit  and  the  interests  of  her  children. 

3Ir.  Pemberton  and  Mr.  W.  C.  L.  Keene,  for  the  defendant,  Barnett. 

The  Master  of  the  Rolls.  In  the  case  of  a  voluntary  assign- 
ment of  a  bond,  where  the  bond  is  not  delivered,  but  kept  in  the 
possession  of  the  assignor,  this  court  would  undoubtedly,  in  the  ad- 
ministration of  the  assets  of  the  assignor,  consider  the  bond  as  a  debt 
to  the  assignee.  There  is  a  plain  distinction  between  an  assignment 
of  stock  where  the  stock  has  not  been  transferred,  and  an  assignment  of 
a  bond.  In  the  former  case,  the  material  act  remains  to  be  done  by  the 
grantor,  and  nothing  is,  in  fact,  done  which  will  entitle  the  assignee  to 
the  aid  of  this  Court  until  the  stock  is  transferred  ;  whereas  the  Court 
will  admit  the  assignee  of  the  bond  as  a  creditor. 

In  the  present  case,  the  gift  of  the  policy  appears  to  me  to  have  been 
perfectly  complete  without  delivery.  Nothing  remained  to  be  done  by 
the  grantor,  nor  could  he  have  done  what  he  afterwards  did  to  defeat 
his  own  grant  if  the  trustees  had  given  notice  of  the  assignment  to 
the  assurance   office.     The   question  does   not  here   turn   upon   any 

1  The  arguments  of  counsel  are  omitted.  —  Ed.« 


SECT.  VII.]  FOETESCUE   V.   BARNETT.  139 

distiuction  between  a  legal  and  an  equitable  title,  but  simply  upon 
whether  any  act  remained  to  be  done  by  the  grantor  which,  to  assist  a 
volunteer,  this  Court  would  not  compel  him  to  do.  I  am  of  opinion 
that  no  act  remained  to  be  done  to  complete  the  title  of  the  trustees. 
The  trustees  ought  to  have  given  notice  of  the  assignment ;  but  their 
omission  to  give  notice  cannot  affect  the  cestuis  que  trust.  The  defend- 
ant appears  to  have  acted  in  this  transaction  with  the  purest  intentions, 
but  he  has  rendered  himself  amenable  to  the  jurisdiction  of  this  Court, 
and  he  must  give  security  to  the  amount  of  the  value  of  the  policy 
assigned  by  the  deed  of  settlement.     The  plaintiff  is  entitled  to  costs. ^ 

^  The  donee  of  a  policy  of  insurance  acquires  the  legal  title  to  the  document  and 
an  irrevocable  power  to  sue  upon  it  in  the  name  of  the  donor,  but  for  his  own  benefit 
(or  for  his  cestui  que  trust  if  the  gift  is  upon  trust)  whenever  (1)  the  policy  is  delivered  to 
the  donee  :  Harrison  v.  McCoukey,  1  Md.  Ch«34 ;  Critt^den  v.  Phoenix  Co.,  41  Mich. 
442  ;  McCord  v.  Isoyes,  3  Bradf.  139 ;  Licey  v.  Licey,  7  Barr,  251,  253  (semhle)  ;  Bond 
V.  Buutiug,  78  Pa.  210,  218  (semUe) ;  Madeira's  App.,  17  W.  N.  C.  (Fa.)  202;  Malone's 
Est.,  13  Phila.  313;  or  (2)  the  gift,  as  in  the  principal  case,  is  by  deed:  Pearson  v. 
Amicable  Co.,  27  Beav.  229;  Sewall  v.  King,  14  Ch.  D.  179 ;  Justice  v.  Wynne,  12  Ir. 
Ch.  U.  289 ;  Otis  v.  Beckwith,  49  111.  121  ;  Badgley  v.  Votrain,  68  111.  25,  28  (semble); 
Massey  v.  Huntington,  118  111.  80  (stmhle)  ;  Trougii's  Est.,  75  Pa.  115;  Boud  v.  Bunt- 
ing, 78  Pa.  210;  Scott  v.  Dixon,  108  Pa.  6  (semUe).  But  see,  contra,  Ward  c.  Audland, 
8  Beav.  201.     In  Pearson  v.  Amicable  Co.,  supra,  Lord  Komilly  said  (pp  232-234)  :  — 

"  I  also  fully  admit,  that  in  these  cases  tliere  is  a  distinction  between  that  species  of 
instrument  wiiich,  by  assignment,  passes  the  property,  and  that  which  simply  operates 
as  a  declaration  of  trust,  and  I  agree  that  this  is  not  a  declaration  of  trust.  The  ques- 
tion is,  whether  this  is  a  complete  instrument,  or  whether  it  requires  the  assistance  of 
a  court  of  ecjuity  for  its  enforcement  1  I  am  of  opinion  that  it  is  a  complete  and 
perfect  instrument,  and  I  will  state  why  I  think  so. 

"  If  this  were  an  assignment  of  the  policy  for  value,  and  the  purchaser  had  come 
to  this  Court  for  its  assistance  to  render  the  assignment  more  completer-what  would 
remain  to  be  done  ?  The  assignor  would  say,  '  What  can  I  do  more  than  I  have 
already  done  1  If  you  had  told  me,  out  of  court,  what  furtlier  assurance  or  what 
further  deed  or  a.ssigumeut  to  make  this  instrument  more  comjdete,  I  would  have  ex- 
ecuted it.'  The  question,  whclhcr  anytiiiiig  remains  to  be  done  to  complete  the 
a-ssignment  of  a  policy  is  exactly  the  same,  whether  it  arises  upon  a  voluntary  instru- 
ment or  upon  one  for  valuable  consideration  :  whether  it  be  one  or  the  other,  tlie 
question  must  be,  wliat  is  There  that  the  a.'isignee  can  reijuire  the  a.ssignor  to  do  to 
make  the  instrument  more  comjikte.  The  error  in  tlie  argument  of  the  defendants  is 
this :  it  is  a.ssumc(l  that  this  is  a  suit  in  which  an  assignee  has  come  hero  to  ask  the 
aid  of  the  Court  in  making  this  instrument  more  crjuijilete  ;  but  he  docs  nothing  of  the 
Hort.  It  is  said  by  the  defendants,  '  If  the  plaintiffs  do  not  require  tlie  assistance  of 
this  Court,  why  do  they  not  proceed  at  law  ? '  but  the  proceeding  suggested  in  this 
ca.Me  would  be  against  the  executors;  tliis  is  not  a  suit  against  the  executors,  it  is  a 
suit  against  the  insurance  company.  Tlie  insurance  comjany  say,  '  We  are  jjcrfectly 
rea/ly  to  pay  ;  we  do  not  contest  your  claim  ;  you  want  nothing  to  make  the  instrument 
more  Cf»mplfte,  and  wo  are  roady  to  pay  the  amount,  but  we  must  not  remain  ojicn  to 
two  suits ;  and  timrefore,  a.s  tlie  executors  raise  an  adverse  claim  to  the  jiolicy,  it  is 
not  for  ns  to  decide  whether  it  is  a  valid  claim  or  not,  and  we  recjuire  the  assistance  of 
this  Court  to  prevent  our  being  doubly  vexed  by  two  suits,  and  to  determine  wliich  of 
the  two  claimants  is  entitled  to  the  money  duo  on  the  policy.  We  admit  the  claim 
respecting  it,  there  is  the  money,  wliich  we  are  ready  to  pay  into  court.' 

"The  plaintiffs  say  our  instrument  is  perfect  ami  comjdeto,  we  do  not  a.sk  for  any 
relief  against  the  executors,  wliy  should  we  not  have  the  money  ''  Tho  insurance 
office  is  right  in  f)aying  it  to  us  ;  it  is  for  tho  executors  to  make  out  their  claim.     The 


140  V     EDWARDS   V.  JONES.  [CHAP.  L 


EDWARDS  V.  JONES. 
In  Chancery,  before  Lord  Cotteniiam,  C,  January  6,  19,  23,  1836. 

[Reported  in  1  Mijine  ^  Craig,  226] 

In  the  year  1819,  Jehu  Nathaniel  Williams,  being  indebted  to  Mary 
Custauce  in  the  sum  of  £300,  gave  her  a  bond  for  securing  that  sum 
with  interest.  In  the  year  1828  the  said  sum  of  £300  being  still  due, 
together  with  an  arrear  of  interest,  amounting  to  the  sum  of  £123  15s., 
a  second  bond  was  given  by  J.  N.  Williams  to  Mary  Custance,  for 
securing  the  latter  sum  with  interest  thereon. 

The  whole  of  the  two  sums  of  £300  and  £123  15s.  remained  due 
upon  the  security  of  the  two  bonds,  at  the  time  of  the  death  of  Mary 
Custance. 

On  the  25th  of  May,  1830,  only  five  days  before  her  death,  Mary 
Custance  signed  the  following  indorsement  upon  the  bond  of  1819  : 
*'  I,  Mary  Custance,  of  the  town  of  Aherystwith,  in  the  county  of  Car- 
digan, widow,  do  hereby  assign  and  transfer  the  within  bond  or  obliga- 

question  is,  whether  the  executors  can  make  out  any  claim.  If  the  assignment 
had  been  made  for  value,  it  is  clear  that  the  assignor  could  not  have  prevented  the 
assignee  from  using  his  name  in  suing  the  insurance  company,  if  they  had  resisted 
the  demand,  and  this  Court  could  not,  and  would  not,  have  allowed  the  assignor  to 
say  his  name  should  not  be  made  use  of.  The  executors  can  stand  in  no  better 
situation  than  the  assignor :  this  Court  would  not  have  prevented  the  assignee  from 
making  use  of  the  name  of  the  assignor,  if  the  insurance  company  had  resisted  pay- 
ment. But  here  the  power  of  attorney  is  voluntary ;  it  is  irrevocable,  and  in  the 
form  usual  in  all  these  instruments,  and  this  Court  will  not  allow  the  grantor  to  con- 
tradict his  deed.  The  Court  will  not  assist  a  volunteer,  but  it  does  not  say,  on  the 
other  hand,  that  it  will  assist  an  assignor  in  defeating  his  voluntary  deed.  The  argu- 
ment has  been  founded  on  the  supposition  that  by  this  suit  the  trustees  are  asking  the 
assistance  of  a  court  of  equity ;  but  in  truth  they  come  here  only  to  resist  the  exec- 
utors of  the  assignor,  who  have  raised  a  claim  which  the  assignor  was  not  himself 
entitled  to  raise,  and  which  they,  standing  in  his  shoes,  arc  not  entitled  to  raise,  but 
which  nevertheless  makes  it  impossible  for  the  plaintiff  to  receive  the  money  until  the 
claim  of  the  executors  is  disposed  of." 

//In  Rummens  v.  Hare,  1  Ex.  Div.  169,  where  the  donor  nf  a  policy  attempted,  un- 
successfully, to  recover  it  in  Detinue,  Lord  Cairns,  C,  remarked  :  "The  intestate  could 
not  have  claimed  to  have  the  document  returned  to  him,  nor  can  his  administratrix 
now  claim  it.  We  have  nothing  to  say  as  to  the  money  which  is  secured  by  it.  This 
is  one  of  those  cases  in  which  the  plaintiff  may  not  be  able  to  recover  the  document, 
which  is  the  evidence  of  the  debt,  while  the  person  who  holds  that  evidence  may  not 
be  able  to  recover  the  debt  itself;  but  with  that  we  have  nothing  to  do."  Witt  v. 
Amis,  1  B.  &  S.  109,  is  a  similar  case,  except  that  the  gift  was  mortis  causa.  See 
infra,  p.  145,  n.  1  ;  p.  1.56,  n.  1  ;  p   162,  n.  4. 

A  gift  of  a  policy  of  insurance  by  a  husband  to  his  wife,  whether  by  deed  or  by 
delivery  of  the  document,  has,  of  course,  no  effect  at  common  law  ;  nor  does  it  give  the 
wife  any  interest  in  equity ;  Howes  v.  Prudential  Co.,  49  L.  T.  Rep.  133  ;  Hayes  •. 
Alliance  Co.,  L.  R.  8  Ir.  149 ;  except  in  jurisdictions  where,  as  in  this  country,  such 
a  transaction  is  treated  not  as  a  gift,  but  as  an  agreement  founded  upon  a  meritorious^ 
and  therefore  valid  consideration.    See  infra,  p.  175,  note.  —  Eu. 


SECT.  VII.]  EDWAEDS   V.   JONES.  141 

tion,  and  all  my  right,  title,  and  interest  thereto,  unto  and  to  the  use  of 
my  niece,  Esther  Edwards,  of  Llanilar,  in  the  said  county  of  Cardigan, 
widow,  with  full  power  and  authority  for  the  said  Esther  Edwards  to 
sue  for  and  recover  the  amount  thereof,  and  all  interest  now  due  or 
hereafter  to  become  due  thereon :  as  witness  my  hand,  this  25th  of 
May,  1830." 

The  bond  of  1828  was  usually  kept  with  the  bond  of  1819.  At  the 
time  at  which  the  indorsement  was  signed,  the  two  bonds  were  fastened 
together  by  a  pin.  Immediately  after  the  indorsement  had  been  signed, 
Mary  Custaucc  delivered  or  caused  to  be  delivered  both  the  bonds  to 
Esther  Edwards,  the  plaintiff  in  this  suit.  The  bonds  remained  in  the 
hands  of  the  plaintiff  until  the  filing  of  the  bill.  IVfliry  Custauce  died 
on  the  30th  of  May,  1830,  having  in  the  year  1829  made  her  will,  in 
which  she  did  not  mention  the  bonds,  or  dispose  of  the  residue  of  her 
property,  but  by  which  she  appointed  the  defendant.  Rice  Jones,  her 
executor,  who  duly  proved  the  will.  After  Mary  Custance's  death,  the 
defendant,  who  had  been  aware  in  her  lifetime  of  the  existence  of  the 
bonds,  supposing  that  they  had  been  lost,  prevailed  upon  J.  N.  Williams, 
the  obligor,  to  execute  a  new  bond  for  the  amount  due  upon  the  two  old 
bonds,  and  at  the  same  time  gave  to  the  obligor  a  bond  of  indemnity 
against  any  claim  which  might  be  made  under  the  old  bonds. 

In  the  month  of  Januarj^  1832,  J.  N.  Williams,  the  obligor,  died,  and 
afterwards  his  widow  and  executrix  paid  to  the  defendant  the  amount 
for  which  the  new  bond  had  been  given. 

The  bill  stated  that  the  plaintiff  was  a  niece  of  Mary  Custance,  and 
that  INIary  Custance  had  a  great  aff'ection  for  the  plaintiff,  and  enter- 
tained, and  at  different  times  expressed,  an  intention  to  give  or  leave 
to  the  i)laintiff  the  bonds,  and  the  money  due  upon  them.  It  alleged 
that  !Mary  Custance  delivered,  or  caused  to  be  delivered,  to  the  plaintiff 
both  tiie  bonds,  intending  that  the  plaintiff  should  be  entitled  thereto, 
and  to  the  moneys  respectively  secured  thereby,  in  case  of  and  after 
the  decease  of  her  the  said  IMary  Custance,  and  expressing  herself  to 
that  or  the  like  effect;  and  the  bill  also  alleged  that  the  bonds,  and  the 
money  due  upon  the  same,  were  well  given  to  the  plaintiff",  b}'  Mary 
Custance,  as  a  gift,  or  as  a  (lo)ialio  laoiiis  causa,  and  that  the  plaintiff 
became  entitled  thereto.  The  bill  tlu'u  went  on  to  allege  that,  under 
the  circumstances,  the  plaintiff  was  entitled  to  the  sum  due  ou  the 
bonds,  and  that  the  deff!n<l.Mnt,  so  far  as  he  had  a  legal  right  of  action 
upon  them,  was  a  trustee  for  the  plaintiff,  and  that  he  was  a  trustee  for 
the  plaintiff  for  the  money  received  by  him  from  the  executrix  of  the 
obligor. 

The  prayer  of  the  bill  was,  that  it  might  be  declared  that  the  i)laintiff 
was  and  is  entitled  to  the  i)rin(i|):il  and  interest  whieh  was  due  upon 
the  two  l)onds,  and  that  the  defenilant  might  be  declared  to  be  a  trustee 
thereof  for  the  plaintiff,  and  that  an  account  might  be  taken  of  what  had 
been  received  by  the  defendant  in  resi)ect  of  the  several  sums  secured 
by  the  bonds,  and  the  interest  thereof  respectively ;  and  that  the  de* 


142  EDWARDS   V.   JONES.  [CHAP.  I, 

feudaut  might  be  decreed  to  pay  to  the  plaintiff  what  should  appear  to 
have  been  so  received  by  him,  with  interest  tliereon  from  tlie  time  when 
the  same  was  received  ;  and  in  case  it  should  appear  that  the  defendant 
had  ifot  received  from  the  estate  of  John  N.  Williams,  the  obligor,  the 
whole  of  the  principal  and  interest,  then  that  the  plaintiff  might  be  at 
liberty  to  take  such  proceedings  as  she  might  be  advised  for  the  re- 
covery thereof,  in  the  name  of  the  defendant ;  and  in  case  it  should 
appear  that  the  defendant  had  released  or  discharged  the  estate  of 
J.  N.Williams,  the  obligor,  from  the  debt,  without  receiving  the  whole 
thereof,  then  that  the  defendant  might  be  decreed  to«make  good  the 
same. 

It  appeared,  by  the  evidence,  that  the  indorsement  was  written  upon 
the  bond  before  the  day  on  which  it  was  signed  by  Mary  Custauce  ; 
and  that  at  the  time  at  which  she  signed  it,  although  upwards  of  eighty 
years  of  age,  and  laboring  under  a  very  painful  disease,  —  cancer  in 
the  breast,  —  she  was  not  worse  in  health  than  she  had  been  for  some 
time  previously,  and  that  she  was  not  in  bed,  and  that  it  was  not  then 
expected  by  those  about  her  that  her  death  would  occur  so  soon  after- 
wards as  it  did.  It  appeared  also  that  the  transaction  took  place  about 
seven  o'clock  in  the  morning,  all  parties  desiring  that  it  should  be  con- 
cealed from  a  sister  of  Mary  Custance  ;  and  it  was  proved  that  IMary 
Custance  accompanied  the  act  of  signing  the  indorsement  by  saying 
that  she  was  thereby  giving  the  Castle  Hill  money  (by  which  ter;n  she 
was  accustomed  to  designate  the  money  due  upon  the  bonds)  to  the 
plaintiff. 

The  cause  was  heard  before  the  Vice  Chancellor,  who  dismissed  the 
bill  with  costs.     The  plaintiff  now  appealed  from  his  Honor's  decision. 

3Ir.  Jacob  and  il/r.  Blake,  for  the  plaintiff.^ 

3Ir.  Kindersley  and  Mr.  Richards,  for  the  defendant. 

The  Lord  Chancellor  (after  stating  the  substance  of  the  bill). 
The  case  being  thus  stated  in  the  bill,  it  was  argued  at  the  bar  that 
the  bonds  were  delivered  either  by  way  of  donatio  mortis  causa,  or  as 
a  gift  iiiler  vivos.  Now,  in  order  to  be  good  as  a  donatio  mortis  causa, 
the  gift  must  have  been  made  in  contemplation  of  death,  and  intended 
to  take  effect  only  after  the  donor's  decease. 

I  consider  the  language  of  the  assignment  itself  to  exclude  the 
possibility  of  treating  this  as  a  donatio  mortis  causa.^ 

The  first  question  upon  the  other  point  is,  whether  the  plaintiff  has 
in  this  suit  claimed  the  property  as  an  absolute  gift.  The  bill  has,  in 
fact,  negatived  the  case  of  gift ;  for  it  states  that  the  donor  intended 
that  the  delivery  should  operate  as  a  donatio  mrjrtis  causa.  Having 
made  that  allegation  of  fact,  it  is  immaterial  that  there  should  be,  in 
another  part  of  the  bill,  an  allegation  stating  a  conclusion  of  law.  If 
the  question  turned  upon  that  point,  if  there  were  a  case  which  would 

1  The  arguments  of  counsel  are  omitted.  —  Ed. 

2  The  opinion  of  Lord  Cottenham  upon  this  point  has  been  greatly  abbreviated. 
—  Ed. 


SECT.  YII.J  EDWAKDS   V.   JONES.  143 

appear  to  constitute  a  gift,  the  Court  would  give  effect  to  it.  Such, 
however,  is  not  the  case,  because,  whatever  might  have  been  alleged 
on  the  record,  there  was  no  ground  for  supposing  that  a  case  could  be 
established  which  would  support  the  transaction  as  a  gift. 

The  transaction  being  inoperative  for  the  purpose  of  transferring  the 
bond,  which  was  a  mere  chose  in  action,  the  question  comes  to  be, 
whether  the  mere  lianding  over  of  the  bond,  —  supposing  the  record  so 
to  have  stated  the  facts  as  to  h.ave  entitled  the  plaintiff  to  make  such  a 
claim,  —  whether  such  a  transaction  would  constitute  a  good  gift  inter 
vivos;  that  is  to  say,  whether  the  plaintiff  would  be  entitled  to  the 
assistance  of  a  court  of  equity  for  the  purpose  of  carrying  into  effect 
the  intention  of  the  parties.  Now,  it  is  clear  that  this  is  a  purely  vol- 
untary gift,  and  a  gift  which  cannot  be  made  effectual  without  the 
interposition  of  this  Court.  The  circumstance  of  the  bond  having  been 
afterwards  paid,  and  the  money  having  got  into  the  hands  of  the  defend- 
ant, cannot  make  any  difference  in  the  determination  of  the  question, 
which  must  depend  upon  the  same  principles  as  if  it  had  arisen  before. 

The  rule  that  this  court  will  not  aid  a  volunteer  to  carry  into  effect  an 
imperfect  gift  has  been  established  by  many  decisions,  and  in  particular 
by  Colman  v.  Sarrel,  Ellison  v.  Ellison,^  and  Ex  parte  P^^e.  The  case 
of  Antrobus  v.  Smith ^  comes  nearer  to  the  circumstances  of  this  case 
than  any  of  those  which  have  been  referred  to.  There  was  in  that 
case  an  indorsement  pretty  much  in  the  same  language  with  the  present 
assignment;  and  the  general  doctrine  there  laid  down  by  Sir  William 
Grant  is  extremely  applicable  here.  In  order  to  bring  this  transaction 
within  the  rule,  that,  if  there  be  a  trust  created,  and  the  relation  of 
trustee  and  cestui  que  trust  once  constituted,  the  court  will  execute  the 
intention,  it  was  argued  here  that  the  defendant  became  a  trustee  for 
the  donee.  The  same  argument  was  used  in  the  case  of  Antrobus  v. 
Smith,  and  it  was  met  by  Sir  W,  Grant  with  this  observation  :  "  Mr. 
Crawfnrd  was  no  otherwise  a  trustee  than  as  any  man  may  be  called  so 
who  professes  to  give  property  by  an  instrument  incapable  of  conveying 
it.  He  was  not  in  form  declared  a  trustee  ;  nor  was  that  mode  of  doing 
what  he  proposed  in  his  contL'in[)lation.  He  meant  a  gift.  Ho  says  he 
assigns  the  [jroperty.  IJut  it  was  a  gift  not  complete.  The  i)ro[)erty 
was  not  transferred  by  the  act.  Could  he  himself  have  been  compelled 
to  give  effect  to  the  gift  by  making  an  assignment?  There  is  no  case 
in  whifh  a  party  has  been  compelled  to  pcrfiU't  a  gift,  which  in  the  mode 
of  making  it  he  has  left  imperfect.  'I'lierc^  is  htciis  jw  nit  en  fie  as  long  as 
it  is  incoini)lete."  Every  word  of  that  judgment  applies  directly  to  the 
circumstances  of  the  present  case.  It  is  impossible,  indeed,  to  dis- 
tinguish the  two  cases  ;  and  it  is  equally  impossible  to  question  the 
doetrino  there  laid  down. 

It  was  said,  however,  that  there  were  two  later  decisions  interfering 
with  this  doctrine  Sloane  v.  Cadogan  and  Fortescue  v.  Baruett     Now, 

'  eVes.  656.  «  12  Ves.  3». 


144  EDWARDS   V.   JONES.  [CHAP.  I. 

it  is  sufficient  to  prevent  tliose  cases  from  applying,  that  in  neither  of 
them  was  any  intention  expressed  by  the  learned  judge  to  depart  from 
the  established  rule,  but  that  in  both  the  decisions  turned  upon  the 
question  of  fact,  whether  or  not  the  relation  of  trustee  and  cestui  que 
trust  was  actually  constituted.  In  neither  was  it  attempted  to  make 
perfect  an  imperfect  gift.  In  Sloane  v.  Cadogan,  the  claim  was  not 
against  the  donor  or  his  representatives,  for  the  purpose  of  making  that 
complete  which  had  been  left  imperfect,  but  against  the  persons  who 
had  the  legal  custody  of  the  fund  ;  and  the  question  was,  whether  the 
transaction  constituted  them  trustees  of  the  fund  for  the  cestui  que 
trusts.  Sir  W.  Grant  came  to  the  conclusion  that  it  did  ;  and  the  con- 
sequence was  that  they  were  bound  to  account.  That  case  has  been 
considered  by  Sir  Edward  Sugden  as  going  a  great  way ;  but,  upon  the 
principle  stated  by  Sir  W.  Grant,  it  is  free  from  all  possible  question, 
for  there  was  no  attempt  in  that  case  to  call  in  aid  the  jurisdiction  of 
this  court. 

Fortescue  v.  Barnett  falls  precisely  within  the  same  observation, 
although  there  are  some  expressions  in  it,  especially  where  the  learned 
judge  speaks  of  a  bond  which  has  been  voluntarily  assigned  being  con- 
sidered a  debt  to  the  assignee,  which  probably  were  not  intended  to 
convey  the  meaning  they  do.  The  case  itself,  and  the  judgment  pro- 
nounced upon  the  facts,  do  not  in  any  way  touch  the  present  question. 
There,  a  party  had  insured  a  life,  and  the  contract  of  the  office  was,  to 
pay  to  the  party  insuring,  his  executors,  administrators,  and  assigns  ; 
but  the  practice  of  the  office  was  stated  to  be,  that  upon  an  assignment 
the  office  recognized  the  assignee,  and  the  policy  was,  therefore,  an 
assignable  instrument.  The  policy  was  not  assignable  at  law,  but  it 
was  a  title  which,  by  contract,  was  assignable  as  between  the  parties ; 
and  the  party  in  that  case  assigned,  but  tlie  assignee  did  not  give  no- 
tice to  the  office,  and  consequently  the  original  insurer  dealt  with  the 
office,  received  a  bonus,  and  then  surrendered  the  policy.  The  Master 
of  the  Rolls  in  that  case  considered,  as  he  naturally  would,  whether 
this  transaction  was  not  a  gift,  — whether  it  did  not,  in  fact,  confer  a 
title  on  the  assignee ;  and  if  it  did,  then,  consistently  with  all  the 
authorities,  he  considered  that  he  was  bound  to  give  the  assignment 
its  full  effect ;  and  he  put  his  decision  expressly  upon  the  fact  that  the 
transaction  was  complete, —  that  there  was  nothing  further  for  the 
donor  or  the  donee  to  do,  —  that  the  latter  had  nothing  to  ask  further 
from  the  donor.  Whether,  upon  the  circumstances  of  that  case,  it  was 
right  or  wrong  to  come  to  that  conclusion,  is  a  question  with  which  I 
have  nothing  to  do.  The  principle  of  the  decision  is  quite  consistent 
with  the  other  cases  ;  for  it  proceeds  upon  the  same  ground  ;  namely, 
that,  if  the  transaction  is  complete,  the  court  will  give  it  effect.  So 
far,  therefore,  are  these  two  cases  from  being  authorities  in  favor  of 
the  gift  in  the  present  case,  the  principle  acted  upon  in  them  by  the 
learned  judges  is  quite  consistent  with  my  refusing  to  aid  the  plaintiff 
in  the  present  bill. 


SECT.  VII.]  EDWARDS   V.   JONES.  145 

On  the  -whole,  I  see  no  reasonable  ground  for  impeaching  the  decision 
of  the  Vice  Chancellor,  and  his  decree  must,  therefore,  be  affirmed.^ 

1  "  A  man  may  give  or  grant  his  deed  to  another,  and  such  grant  by  parol  is  good. 
And  it  is  also  implied,  that  if  a  man  hath  an  obligation,  though  he  cannot  grant  the 
thing  in  action,  yet  he  may  give  or  grant  the  deed,  viz.  the  parchment  and  wax,  to 
another,  who  may  cancel  and  use  the  same  at  his  pleasure."  Co.  Lit.  232  a,  b.  See  to 
the  same  effect  Kelsack  v.  Nicholson,  Cro.  El.  496 ;  Chadwick  v.  Sprite,  Cro.  El.  826  ; 
Mallory  v.  Lane,  Cro.  Jac.  342. 

In  the  time  of  Coke,  a  purchaser  or  donee  of  a  chose  in  action  acquired  no  right 
against  the  obligor.  The  so  called  assignee  (more  properly  the  grantee  of  a  power  of 
attorney  for  his  own  use)  was  not  permitted  to  sue,  even  in  the  assignor's  name,  unless 
the  chose  in  action  was  transferred  to  him  on  account  of  a  pre-existing  debt.  1  Harv. 
L.  Rev.  6  ;  3  Harv.  L.  Rev.  340.  Furthermore,  even  a  creditor  of  the  assignor  could 
not  sue  in  the  latter's  name  unless  he  had  an  express  power  of  attorney  to  that  effect 
(Mallory  v.  Lane,  Cro.  Jac.  342),  the  notion  of  an  implied  power  of  attorney  being  as 
much  beyond  the  conception  of  lawyers  three  centuries  ago  as  the  analogous  idea  of  an 
implied  promise.     2  Harv.  L.  Rev.  53.  58. 

These  difficulties  in  the  path  of  the  assignee  have,  however,  disappeared.  To-day 
a  transfer  to  a  purchaser  or  donee  is  as  free  from  maintenance  as  an  assignment  to  a 
creditor;  and  a  power  to  sue  is  as  easily  implied  as  a  promise  to  pay  from  circum- 
stantial evidence.  It  is,  accordingly,  everywhere  agreed  that  if  a  bond  is  assigned 
either  on  account  of  a  pre-existing  del)t,  or  by  way  of  sale,  whether  with  or  without  an 
express  power  of  attorney,  the  creditor  or  the  purchaser  may  sue  tlie  obligor  in  the 
name  of  the  assignor  or  his  representative.  The  implication  of  a  power  to  sue  in 
the  assignor's  name  would  seem  equally  obvious  in  favor  of  a  donee  when  tlie  bond 
is  delivereil,  delivery  being  as  effectual  as  a  consideration  to  vest  the  title  to  the  docu- 
ment in  the  transferee. 

The  decisions,  however,  are  not  altogether  satisfactory. 

In  Gifts  C.\t;.s.v  Mortis  the  irrevocable  right  of  the  donee  is  admitted  both  in 
England  and  the  United  States.  Snellgrove  i'.  Bailey,  3  Atk.  214  ;  Duffield  v.  Elwes, 
1  Bligh,  N.  s.  542 ;  Gardner  v.  Parker,  3  Mad.  184  ;  Staniland  ;•.  Willott,  3  MacN.  &  G. 
676  ;  Waring  v.  Edmonds,  II  Md.  424  ;  Kiff  c.  Weaver,  94  N.  Ca.  274;  Wells  v.  Tucker, 
3  Binu.  366;  Lea  r.  Boak,  11  Grat.  182. 

In  Gifts  intkk  Vivos,  on  the  other  hand,  if  the  principal  case  is  still  law,  the 
donee  has  no  cbiim  again.st  the  obligor.  This  case  was  followed  in  Searle  /■.  Law,  15 
Sim.  95,  and  approved  in  Re  Richardson,  30  Ch  Div.  396,  401,  404.  But  see,  covtra, 
Roberts  v.  Llovd,  2  Beav.  376  ;  I'atterson  v.  Williams,  LI.  &  G.  t.  Plunket,  95,  99 
(semhh) ;  and  especially  Re  Patrick,  '91,  I  Ch.  82. 

This  distinction  between  a  gift  inter  vivos  and  a  dmittio  mortis  raiisa,  it  is  safe  to  sav, 
wa.s  not  coutem])lated  by  Lord  Hardwicke  in  Snellgrove  v.  Bailey,  supra.  See  also 
1  Bligii,  N.  s.  500,  per  Sugdcn  arriuendo.  And  since  the  donor  cannot  recover  the  bond 
from  the  donee,  having  voluntarily  parted  with  it  (Barton  r.  Gainer,  3  H.  &  N.  387,  see 
also  suprri,  140,  n.  1 ;  in/hi,  156,  n.  1 ;  162,  n.  4),  and  for  want  of  it  is  also  without  rem- 
edy agnin.Ht  the  oldigor,  we  have  this  anomalou.s  condition  of  things,  namely,  two  adverse 
claimants  of  a  liebtronfes.sfdly  duo,  and  the  courts  ]M)wcrlcss  to  give  juilgnienf  for  oitJuT. 
/  Thi.H  unfortunate  conclusion  is  avoided,  and  consistency  maintaineii,  in  tiiis  cuiintry, 
where  the  gift  of  a  bond  inter  vivos  is  put  on  the  same  footing  with  a  gift  in  view  of 
death.  Ensign  r  Kellogg,  4  Pick.  1  ;  Hunt  v.  Hunt,  1 19  Mass.  474  ;  Cox  ?•.  Hill.  6  Md. 
274  {semhie)  ;  Ruckman  /•.  liuckman.  33  N.  .1.  354  ;  fiilclirist  v.  Stevenson.  9  Ibub.  9  ; 
Hunter  i-.  Hunter,  19  Harh.  631 ;  Hackney  v.  Vrooman.  62  Barb.  650  ;  Johnson  i'.  Spies, 
5  Hiin,  463  {semUr) ;  Tnber  v.  Willetls,  44  Hun,  346  ;  AV  Wirt,  5  Dcni.  179  ;  Pringlc  r. 
Pringlc,  59  I'a  2«l  ;  Ziinmermann  v.  Strccpcr,  75  Pa.  147  :  Elam  v.  Keen, 4  Leigh,  .333  ; 
Sterling  r.  Wilkinson,  83  Va.  791  (sernhle) ;  Lewis  i-.  Mason,  84  Va.  180  {semhle)  ; 
Fleshnian  v.  Hoylman.  27  W.  Va.  728;  Wilson  v.  Carpenter,  17  Wis.  512  {semhic). 
Sec  al.'o  UiijKTt  /;.  .b.hnston,  40  U.  C.  Q.  B.  11,  16,  17. 

/  A  deed  of  gift  without  delivery  is  as  effectual  as  a  parol  gift  with  delivery.     See 
^  10 


146  DONALDSON  V.   DONALDSON.  [CHAP.  L 


*  DONALDSON   v.   DONALDSON. 

In  Chancery,  before  Siu  W.  P.  Wood,  V.  C,  August  11,  1854. 

[Reported  in  Kai/,  711.] 

Vice  Chancellor  Sir  "W.  Page  Woon.^  In  this  case  a  question 
bus  been  raised  how  far  a  deed  of  assignment,  executed  by  Thomas 
Hudson,  and  dated  tlie  2yth  day  of  June,  1850,  by  winch  he  volun- 
tarily assigned  a  large  amount  of  property,  consisting  of  various 
securities,  to  trustees  upon  certain  trusts  lor  the  benefit  of  his  donees, 
has  been  available  to  pass  certain  portions  of  the  property  included  in 
the  deed.  The  question  has  arisen  between  some  of  the  parties  claim- 
ing under  the  deed  and  the  Crown,  because  the  property  which  did  not 
pass  by  the  deed  would  be  liable  to  probate  and  legacy  duty,  as  passing 
by  the  settlor's  will. 

With  respect  to  the  great  bulk  of  the  property  comprised  in  the 
deed,  the  counsel  for  the  Crown  has  conceded,  that,  as  it  stood  in  the 
funds  and  other  securities  in  the  name  of  the  settlor,  and  as  he  has 
executed  a  declaration  of  trust  contained  in  this  deed,  the  relation  of 
trustee  and  cestui  que  trust  has  been  created,  so  that  this  Court  will 
give  effect  to  it.  The  real  question  arises  with  respect  to  the  sum  of 
£29,400  stock,  which  was  standing  in  the  names  of  the  trustees  of  the 
settlor's  marriage  settlement  in  trust  for  himself.  I  do  not  think  that 
the  declaration  of  trust  annexed  to  the  description  of  this  stock  in  the 
schedule  is  material.  What  I  have  to  consider  is,  how  far  an  assign- 
ment of  this  kind,  of  which  no  notice  was  given  to  the  trustees  in 
whose  names  this  stock  was  standing,  was  effectual  to  pass  the  property 
therein  to  the  trustees  of  the  voluntary  deed,  so  that  this  Court  would 
hold,  as  between  the  donees  under  that  deed  and  the  representatives  of 
the  assignor,  that  the  title  was  complete.  For  the  purposes  of  this 
question,  it  was  necessary  to  consider  the  case  of  Kekewich  v.  Man- 
ning,'- in  which  the  other  decisions  are  reviewed  and  commented  on  by 
Lord  Justice  Knight  Bruce,  and  which  seemed  to  me,  if  1  may  use  the 
expression,  to  stem  the  current  of  authority  which  had  begun  to  set  in 
adversely  to  these  trusts,  more  especiall}'  since  the  decision  in  Edwards 
V.  Jones.  Ever  since  that  case  there  has  been  considerably  more 
difficulty  as  to  how  far  a  voluntaiy  assignment  of  a  chose  in  action 
does  or  does  not  confer  a  title  on  the  donee.     Looking  throu";h  the 

Brownl.  40;  Drakeford  v.  Wilks,  3  Atk.  539  (semble) ;  Patterson  v.  Williams,  LI.  &  G. 
t.  Pluiiket,  95,  99  (semble) ,  Smith  v.  Bi.ssell,  19  N.  Y  W.  D.  264.  The  case  of  Bizzey 
j;.  Flight,  24  W.  R.  957,  contra,  seems  to  be  overruled  by  Re  Patrick  [1891],  1  Ch.  82. 

Jlik.mknts.  —  A  specialty  in  the  form  of  a  judgment  maybe  gratuit<Hisly  trans- 
ferred aa  freely  as  a  specialty  by  deed.  Delivery  of  the  judgment  is  enough  in  this 
country.  Mack  v.  Mack,  3  Hun,  323  ,  Brunson  v  Bruuson,  Meigs,  030.  Whether  the 
rule  is  now  the  same  in  England  must  depend  upon  whether  the  principal  case  (Ed- 
wards t>  Jones)  is  still  law.  See  Patterson  v.  Williams,  LI.  &  G.  t.  PI.  95.  —  Ed. 
1  See  supra,  p.  70,  n.  1  —  Ed.  ^  I  DeG.,  M.  &  G.  176. 


SECT.  YII.]  DONALDSON   V.   DONALDSON.  1-17 

cases,  the  principle  which  I  gather  from  them  is  the  same  as  that  on 
which  the  Lords  Justices  seem  to  have  proceeded  in  Kekewich  v.  Man- 
ning.' and  though  that  case  does  not  go  so  far  as  the  present,  I  still 
think  that  this  is  concluded  b}'  it.  In  all  the  cases,  except  Beatson  v. 
Beatson^  and  particularly  in  £Jx  parte  Pye,  it  is  laid  down  that,  when 
there  is  a  complete  declaration  of  trust  by  a  party  concerning  stock 
or  choses  in  action  vested  in  himself,  this  Court  will  enforce  it.  On 
the  other  hand,  where  there  is  a  contract  only,  or  an  imperfect  gift, 
which  requires  some  other  act  to  complete  it  on  the  part  of  the  as- 
signor or  donor,  the  Court  will  not  interfere  to  require  anything  else  to 
be  done  by  him.  The  intermediate  cases  alone  are  difficult  of  solution. 
The  question  is,  in  every  case,  has  there  been  a  declaration  of  trust,  or 
has  the  assignor  performed  such  acts  that  the  donee  can  take  advan- 
tage of  them  without  requiring  any  further  act  to  be  done  b}-  the  as- 
signor ;  and,  if  the  title  is  so  far  complete  that  this  Court  is  not  called 
upon  to  act  against  the  assignor,  it  will  assist  the,  donee  in  obtaining 
the  property  from  any  person  who  would  be  treated  as  a  truslee  for 
him.  In  Beatson  v.  Beatson  ^  alone  there  was  an  assignment  of  an 
equitable  mterest  in  stock,  which  was  vested  not  in  the  donor  but  in  a 
third  party,  and  it  w^as  held  that  the  Court  would  not  assist  the  volun- 
teer. In  Dillon  v.  Coppin  ^  stock  standing  in  the  donor's  own  name 
was  assigned,  and  there  this  distinction  was  taken,  which  was  some- 
what nice,  but  still  consistent  witli  P^llison  v.  Ellison^  and  the  other 
cases  ;  namely,  that,  the  stock  being  in  the  name  of  the  donor  himself, 
and  there  being  no  declaration  of  trust  but  a  mere  assignment,  which 
would  not  pass  the  stock  at  all,  and  the  deed  showing  an  evident  inten- 
tion on  the  part  of  the  assignor  to  do  some  further  act,  and  containing 
a  covenant  to  perfect  the  gift,  the  Court  said,  we  cannot  call  upon  the 
donor  to  transfer  the  stock  or  complete  the  gift.  But  in  the  case  of  an 
assignment  of  the  equitable  interest  in  stock  standing  in  the  names  of 
trustees,  the  deed  of  assignment  passes  the  whole  equitable  interest  of 
tlie  donor,  and  the  donee  may  go  with  that  deed  to  the  trustees,  and 
say,  transfer  to  me  the  interest  in  this  sum  of  stock  ;  and  I  think  that 
in  such  a  case  it  would  not  even  be  necessary  to  make  the  donor  a 
party  to  a  suit  to  enforce  the  gift. 

Then  the  question  is,  whether,  notice  not  having  been  given  to  the 
trustees,  the  gift  could  be  enforced.  As  to  thnt,  it  has  been  said  in 
some  cases,  that  the  gift  is  complete  when  no  further  act  is  required  to 
bo  done  by  the  donor  or  the  donee  ;  and  tiiat  seems  to  imply  a  doubt 
whether,  if  tiierc  were  any  act  to  be  done  l)y  the  donee,  the  gift  could 
])e  treated  as  complete.  But  the  assignment  lias  completely  passed  the 
interest  of  the  donor.  It  is  true,  that,  if  no  iK)tice  of  it  were  given  to 
the  trustees,  they  would  be  justified  in  transferring  the  stock  to  the 
original  cestui  que  trust  for  whom  they  held  it;  and,  if  they  did  so, 
there  would  ])e  no  remedy  against  them ;  and  it  is  possible  that  the 

»  I  Df'G.,  M.  &  G.  176.  2  12  Sim.  291. 

»  i  My.  &  Cr.  647.  *  6  Ves.  656. 


1^8  DONALDSON   V.   DONALDSON.  [CHAP.  L 

ilonce  might  not  be  able  to  recover  the  stock ;  but  all  that  the  donee 
has  to  do  is,  at  any  time  he  thinks   fit,  to  give   notice  to  the  trustees 
before  the  stock  is  transferred  ;  and  when  he  has  given  such  notice,  his 
title  is  complete :  and,  unless  the  donor  or  his  executors  actually  obtain 
possession  of  the  fund,  the  donee  does  not  require  the  aid  of  this  Court 
against  them.     The  fact  that  the  trustees  are  themselves  the  executors 
of  the  donor  in  this  case,  1  think,  does  not  make  any  dilference.     As 
the  donor  has  not  obtained  possession  of  the  fund,  the  donees  have  a 
right  to  go  to  the  trustees  and  require  them  to  transfer  the  stock,  or 
come  to  the  Court  to  have  that  done.     The  donees  require  no  assist- 
ance from  the  Court  against  the  original  assignor,  and  therefore  the 
assignment  is  such  as  the   Court  will  support.     That  is  the  principle 
upon  which  cases  like  Sloane   v.  Cadogan  proceed,  and  which  Lord 
Cottenham  seems  to  recognize  in  Edwards  v.  Jones,  where  he  sa3-s, 
"  In  Sloane  v.  Cadogan  the  claim  was  not  against  the  donor  or  his  rep- 
resentatives for  the  purpose  of  making  that  complete  which  had  been 
left  imperfect,  but  against  the  persons  who  had  the  legal  custody  of  the 
fund ;  and  the  question  was,  whether  the  transaction  constituted  them 
trustees  for  the  fund  for  the  cestui  que  trusts"     Sir  W.  Grant  came  to 
the  conclusion  that  it  did ;  and  the  consequence  was,  that  they  were 
bound  to  account.     That  case  has  been  considered  by  Sir  Edward  Sug- 
den  as  going  a  great  way  ;  but,  upon  the  principle  stated  by  Sir  W.  Grant, 
it  is  free  from  all  possible  question,  for  there  was  no  attempt  in  that  case 
to  call  in  aid  the  jurisdiction  of  the  Court."     In  this  case,  there  is  no 
need  whatever  for  the  donees  to  call  in  aid  the  jurisdiction  of  this  Court 
against  the  original  assignor  or  his  representatives.     All  that  they  have 
to  do  is,  to  require  the  trustees  who  hold  the  fund  to  transfer  it  to  them. 

This  decision  goes  somewhat  beyond  all  the  authorities  except  Cado- 
gan V.  Sloane  ;  but  I  cannot  hold  that  the  owner  of  an  equitable  inter- 
est in  a  chose  in  action  is  not  entitled  to  assign  it ;  and  I  think  that, 
upon  the  principle  recognized  in  Ellison  v.  Ellison,^  and  like  cases,  I 
must  decide  that  the  equitable  interest  in  this  stock  was  effectually 
assigned  by  this  deed.^ 

1  6  Ves.  656. 

2  Villera  v.  Beaumont,  1  Vern.  100;  Ellison  v.  Ellison,  6  Ves.  656;  Bentiey  v. 
Mackay,  15  Beav.  12;  Voyle  v.  Hughes,  2  Sni.  &  G.  18;  Lambe  v.  Orton,  1  Dr.  & 
Sm.  125 ;  Gilbert  v.  Overton,  2  Hem.  &  M.  110;  Re  Way's  Trusts,  2  D.  J.  &  S.  365 ; 
Nanney  v.  Morgan,  37  Ch.  Div.  346 ;  Re  Lucan,  45  Ch.  D.  470  (semble) ;  Gannon  v. 
White,  2  Ir.  Eq.  207;  Ensign  v.  Kellogg,  4  Pick.  1  ;  Stone  v.  Haokett,  12  Gray,  227; 
Henderson  v.  Sherman,  47  Mich.  267  ;  Johnson  v.  Williams,  63  How.  Pr.  233 ;  Ham 
I.-.  Van  OrJen,  84  N.  Y.  257  ;  Patton  v.  Clendennin,  3  Murph.  (N.  Ca.)  68  {semble); 
Chasteen  v.  Martin,  84  X.  Ca  391  Accord. 

Bridge  v.  Bridge,  16  Beav.  315  (said  in  Re  King,  14  Ch.  D.  184,  to  have  been  de- 
cided on  a  wrong  ground)  ;  Meek  v.  Kettlewell,  1  Hare,  464  (said  in  Penfold  v.  Mould, 
4  Eq.  562,  and  Sullivan  ti.  Sullivan,  Brunner,  645,  to  be  in  effect  overruled)  Contra. 

Although,  as  the  principal  case  shows,  a  cestui  que  trust  may  make  a  valid  gra- 
tuitous assignment  of  his  tru.st,  he  cannot  without  consideration  create  a  valid 
equitable  charge  upon  his  interest.  Re  Lucan,  45  Ch.  I).  470.  On  the  same  principle, 
a  so  called  partial  assignment  of  a  chose  in  action,  being  in  effect  an  equitable  charge, 
is  inoperative,  if  not  supported  by  a  consideration.     Alger  v.  Scott,  54  N.  Y.  14.  —  Ed, 


SECT.  VII.]  MILEOY  V.  LORD.  149 


MILROY  V.   LORD. 

In  Chancery,  before  Sir  J.  L.  Knight  Bruce  and  Sir  G.  J. 
Turner,  L.JJ.,  June  2,  3,  4,  July  26,  1862. 

[Reported  in  4  Be  Gex,  Fisher,  ^  Jones,  264.] 

This  was  an  appeal  by  the  defendant  Otto,  the  personal  representa- 
tive of  Medley,  from  a  decree  of  Vice  Chancellor  Stuart. 

The  bill  was  filed  by  Andrew  Row  M'Taggart  Milroj'  and  Eleanor 
Rainey,  his  wife,  formerly  E.  R.  Dudgeon,  for  the  purpose  of  having 
new  trustees  appointed  of  a  voluntary  settlement  made  by  the  late 
Thomas  Medley,  and  for  recovering  fifty  shares  of  the  Bank  of 
Louisiana,  whicli  formed  the  subject  of  the  settlement,  and  thirteen 
jSTorth  American  fire  insurance  shares,  which  were  purcliased  with  the 
income  of  the  bank  shares,  together  with  the  dividends  upon  all  the 
above  mentioned  shares,  so  far  as  they  had  not  been  paid  over  to 
the  plaintiffs  or  one  of  them  ;  and  the  bill  also  prayed  that  the  defend- 
ant Samuel  Lord,  the  trustee  named  in  the  settlement,  might  be  de- 
creed to  make  compensation  to  the  plaintiffs  and  other  the  parties 
entitled  under  the  settlement  in  respect  of  his  having  given  np  the 
certificates  for  the  shares  to  the  defendant  Otto,  the  executor  of 
Thomas  Medley. 

The  settlement  in  question  was  made  by  a  deed  poll,  dated  the  2d 
April,  18.i»2,  which  was  as  follows  :  — 

"Know  all  men  by  these  presents,  that  I,  Thomas  Medley,  of  the 
city  of  New  Orleans,  on  account  of  the  love  and  affection  I  have  for 
my  niece,  Eleanor  Rainey  Dudgeon,  daughter  of  Daniel  Dudgeon,  of 
England,  and  in  consideration  of  one  dollar  to  me  in  hand  paid,  have 
conveyed,  transferred,  set  over,  and  delivered,  and  b}'  these  presents 
do  convey,  transfer,  set  over,  and  deliver,  unto  Samuel  Lord,  of  the 
city  and  county  of  New  York,  fifty  shares  of  the  capital  stock  of  the 
Bank  of  Louisiana,  now  standing  in  my  name  in  the  books  of  the  said 
bank,  together  with  the  certificate  or  scrip  thereof,  numbered  3,457, 
and  dated  the  fith  ALirch,  18.j2,  under  the  corporate  seal  of  the  said 
bank,  signed  by  \V.  W.  I\Iontgoniery,  i)resident,  and  attested  by  R. 
i\L  Davis,  cashier,  and  the  dividends  and  profits  thereof,  to  have  and 
to  hold  to  the  said  Samuel  Lord  and  his  legal  representatives  upon  the 
trusts  and  conditions  following,  to  wit,  in  trust  to  collect  and  receive 
the  dividends  and  |>ronts  of  tlje  said  stock,  and  apply  them  to  the  use 
and  benefit  of  the  said  Eleanor  Rainey  Dudgeon,  if  I  ])e  living  until 
the  time  of  the  marriage  of  the  said  Eleanor,  and  upon  the  further 
trust,  in  case  I  die  before  the  marriage  of  the  said  Eleanor,  leaving  her 
surviving  me,  then  to  transfer  the  said  shares  of  stock,  or  'the  pro- 
ceeds thereof,  to  the  said  Eleanor,  for  her  own  use  and  benefit ;  and 


130  MILllOY   V.   LOUD.  [chap.  I. 

upon  the  further  trust,  iu  case  the  said  Kleanor  shouUl  during  my  life- 
lune  marry,  with  my  i)revious  consent  and  approbation,  then  to  ai)i)ly 
the  said  divickMuls  and  profits  to  the  use  of  the  said  Eleanor  for  life, 
and   after  her  ileath  to  convey  and  transfer  the  said  stocks  or  the 
proceeds  thereof  to  her  issue,  if  she  leave  any  her  surviving,  and  in 
default  of  such  issue  to  convey  and  transfer  the  said  stock  or  its 
proceeds  to  my  next  of  kin  ;  and  upon  the  further  trust,  if  the  said 
Eleanor  shall  have  died  before  me  without  having  married,  or  shall 
during  my  lifetime  marry  without  my  consent,  then  to  reconvey  and 
retransfer  the  said  stock  or  its  proceeds  to  me  ;  and  upon  the  further 
trust,  on  my  direction  at  any  time  during  my  lifetime,  or  in  his  dis- 
cretion after  my  death,  to  convert  the  said  stock  into  money  by  sale 
thereof,  and  after  such  conversion  to  invest  the  proceeds  thereof  in 
his  discretion  in  other  stocks  or  upon  a  bond  or  mortgage  at  interest, 
to  be  held  on  the  like  trusts  and  subject  to  the   like  powders  of  con- 
version as  the  stock  hereby  transferred,  and  the  dividends  and  profits 
thereof ;  reserving  to  myself  the  power  at  any  time  in  writing,  by  will 
or  otherwise,  to  direct  and  compel  the  said  Samuel  Lord  to  transfer 
the  said  stock  or  the  proceeds  thereof  to  the  said  Eleanor,  for  her  own 
use  and  benefit  absolutely,  and  also  reserving  to  myself  the  power,  in 
case  of  the  death  of  the  said  Samuel  Lord  before  me,  of  appointing 
another  or  other  trustee  or  trustees  in  his  place  and  stead.     And  I,  the 
said  Samuel  Lord,  do  consent  and  agree  to  accept  this  transfer ;  and 
I  hereby  covenant  and  agree  to  and  with  the  said  Thomas  Medley  and 
the  said  Eleanor  Rainey  Dudgeon,  severally  and  respectively,  and  their 
several  and  respective  legal  representatives,  that  I  will  observe,  per- 
form, fulfil,  and  keep  the  trusts  and  conditions  hereinbefore  declared." 
This  deed  poll  was  under  the  hand  and  seal  both  of  Thomas  Med- 
ley and  of  the  defendant  Samuel  Lord.     At  the  time  of  the  execu- 
tion of  the  deed  poll,  Samuel  Lord  held  a  power  of  attorney  from 
Thomas  Medley,  whereby  Medley  empowered  him  "  to  take  possession, 
charge,  and  control  of  all  his  goods,  chattels,  books  of  account,  evi- 
dences of  debt,  choses  in  action,  and  claims  of  every  kind,  to  buy  and 
to  sell  and  to  transfer  the  stock  of  any  incorporated  company  now 
belonging  to  him,  or  wdiich   might  thereafter  belong  to  him,  and  to 
collect  and  receive  the  dividends,"  and  gave  him  general  authority  to 
act  on  his  behalf.     Soon  after  the  execution  of  the  deed  poll,  Thomas 
Medley  delivered  to  the  defendant  Lord  the  scrip  for  one  hundred  and 
sixty-two  shares  which  he  then  held  in  the  Bank  of  Louisiana,  in- 
cluding the  scrip  for  the  fifty  shares  comprised  in  the  deed  of  settle- 
ment.    About  the  same  time,  jNIedley  gave  to  the  defendant   I>ord  a 
further  power  of  attorney,  authorizing  him  to  receive  the  dividends 
then  due  and  payable,  and  which  might  thereafter  become  due  and 
payable,  on  all  or  any  shares  of  the  capital  stock  of  the  Bank  of  Louis- 
iana then  standing,  or  which  might  thereafter  be  placed  in  his  name 
in  the  books  of  the  said  Bank  of  Louisiana,  and  to  give  receipts,  dis- 
charges, and  acquittances  for  the  same,  with  power  to  the  said  attor- 


SECT.  VII.]  MILROY   V.   LORD.  151 

ney  to  substitute  an  attorney  or  attorneys  under  him  for  all  or  any  of 
the  purposes  aforesaid,  and  to  do  all  lawful  acts  requisite  for  affecting 
the  premises. 

Accordmg  to  the  constitution  of  the  Bank  of  Louisiana,  the  shares 
in  the  bank  were  transferable  in  the  books  of  the  company,  and  all  . 
transfers  were  to  be  made  by  the  proprietor  or  his  lawful  attorne}', 
the  certificates  of  stock  being  surrendered  at  the  time  the  transfer 
was  made  ;  but  it  was  to  be  collected  from  the  evidence  in  the  cause, 
that,  where  a  transfer  was  made  by  power  of  attorney,  the  power  of 
attorney  had  to  be  left  with  the  bank.  No  transfer  was  ever  made 
into  the  name  of  the  defendant  Lord  of  the  fifty  shares  comprised  in 
the  settlement ;  but  the  dividends  upon  the  shares  appeared  to  have 
been  received  by  Lord,  and  remitted  by  him  to  the  plaintiff  Mrs.  Mil- 
roy,  then  Eleanor  Raiuey  Dudgeon,  sometimes  directl}'  and  some- 
times through  the  medium  of  tlie  settlor,  by  whom  the}'  were  paid 
over  to  her,  except  as  to  one  dividend,  which  appeared  not  to  have 
been  so  paid  over.  The  thirteen  North  American  fire  insurance  shares 
were  purchased,  as  it  appeared,  paid  to  Mrs.  Milroy,  then  Eleanor 
Kainey  Dudgeon,  along  with  the  dividends  upon  the  bank  shares  ;  but 
these  insurance  shares  were  purchased  in  the  name  of  Thomas  Medley. 

In  the  year  I800,  the  plaintiffs  intermarried,  with  the  consent  and 
approbation  of  Thomas  Medley.  In  the  month  of  November  in  that 
year  Thomas  Medley  died,  having  by  his  will  bequeathed  to  the 
j)4aintiff  E.  R.  Milroy  a  legacy  of  £4,000,  and  appointed  the  defend- 
ant J.  A.  Otto  to  be  his  executor,  who  duly  proved  his  will.  After 
his  death,  the  defendant  Lord  delivered  to  Otto  the  certificates  both 
for  the  fifty  Louisiana  bank  shares  and  for  the  thirteen  Nortli  Ameri- 
can fire  insurance  shares.  The  plaintiff  E.  R.  Milroy  was  the  niece 
of  Thomas  Medley.  She  was  educated  at  his  expense,  and  lived 
witii  him  after  she  was  grown  up  until  the  summer  of  the  year  1.SJ2, 
in  the  spring  of  winch  year  he  married  the  daughter  of  the  defendant 
iSamuel  Lord.  The  settlement  whicii  llu;  bill  souglit  to  cnforct  was 
made  in  consequence  of  that  marriage,  and  of  the  [)laintiff  E.  R.  IMilroy 
then  ceasing  to  live  with  Iho  settlor,  and  as  a  provision  for  her;  and 
she  was  told  by  Thomas  Medley  that  he  had  made  the  settlement  on 
tliat  account  and  for  that  |)urpose. 

The  Vice  Chancellor  Stuart,  at  the  hearing  of  tlie  cause,  and  of  a 
petition  presented  in  it  and  under  (he  trustee  act,  made  a  decree 
declaring  that  tiie  fifty  siiares  in  tii(>  r.nnk  of  Loiusiana  were  bound 
])y  tlic  trusts  declared  by  tlic  deed  \n)\\  of  tlie  "id  April,  l.S,'>2,  and 
that  the  thirteen  siiarcs  in  the  North  American  Fire  Insurance  Com- 
pany, in  th(!  bill  mentioned,  belonged  to  the  plaintiffs  in  right  of  the 
plaintiff  Eleanor  Rainey  Milroy,  tlie  same  having  been  purchased 
before  her  marriage  with  moneys  belonging  to  her.  The  decree  pro- 
ceeded U)  appoint  a  new  trustee,  and  to  order  the  defendant  Otto,  an 
executor  of  the  will  of  the  settlor,  to  transfer  the  fifty  shares  in  the 
Bank  of  Louisiana  into  the  joint  names  of  Lord  and  the  new  trustije. 


lo'2  iMlLROY   V.   LOKD.  [CIIAP.  L 

to  be  held  by  them  upon  the  ti'usts  of  the  said  deed  poll,  and  also  to 
transfer  the  thirteen  sliares  in  the  North  American  Fire  Insurivnco 
Company  into  the  name  of  the  plaintiff  Andrew  Row  INI'Taggart  Mil- 
roy,  for  his  own  use.  It  was  further  ordered  that  the  amount  of  the 
dividends  accrued  since  the  decease  of  Medley  upon  the  lifty  shares 
in  the  Bank  of  Louisiana,  up  to  the  time  of  the  transfer,  should  be 
paid  by  Otto  to  Lord  and  the  new  trustee,  to  be  also  held  by  them 
upon  the  trusts  of  the  deed  poll ;  and  that  the  amount  of  the  dividends 
accrued  since  the  decease  of  Medley  upon  the  thirteen  shares  sliould 
be  paid  to  the  plaintiff  Andrew  Row  M'Taggart  Milroy,  for  his  own 
use.     The  costs  of  the  suit  were  ordered  out  of  Medley's  estate. 

The  defendant  Otto  appealed  from  this  decree. 

3lr.  Cvauj  and  Mr.  Charles  Hall,  for  the  plaintiffs,  in  support  of 
this  decree. 

Mr.  Cotton,  {Mr.  Bacon  with  him,)  for  the  appellant. 

Mr.  Malins  and  Mr.  Kekewich,  for  Lord.  Judgment  reserved. 

Jul}-  2G.  The  Lord  Justice  Tukner,'  after  stating  the  facts  of  the 
case  nearly  in  the  same  terras  as  above,  proceeded  as  follows  :  — 

Under  the  circumstances  of  this  case,  it  would  be  diflicult  not  to  feel 
a  strong  disposition  to  give  effect  to  this  settlement  to  the  fullest  ex- 
tent, and  certainly  I  have  spared  no  pains'  to  find  the  means  of  doing 
so,  consistently  with  what  I  appreliend  to  be  the  law  of  the  court ;  but, 
after  full  and  anxious  consideration,  I  find  myself  unable  to  do  so.  1 
take  the  law  of  this  court  to  be  well  settled,  that,  in  order  to  render  a 
voluntary  settlement  valid  and  effectual,  the  settlor  must  have  done  ev- 
erything which,  according  to  the  nature  of  the  property  com[)rised  in 
the  settlement,  was  necessary  to  be  done  in  order  to  transfer  the  prop- 
ert}-,  and  render  the  settlement  binding  upon  him.  He  may,  of  course, 
do  this  by  actuall}-  transferring  the  property  to  the  persons  for  whom 
he  intends  to  provide,  and  the  provision  will  then  be  effectual ;  and  it 
will  be  equally  effectual  if  he  transfers  the  property  to  a  trustee  for  the 
purposes  of  the  settlement,  or  declares  that  he  himself  liolds  in  trust 
for  tliose  purposes  ;  and,  if  the  propert}'  be  personal,  the  trust  ma_y, 
as  I  apprehend,  be  declared  either  in  writing  or  b\'  parol ;  but,  in  order 
to  render  the  settlement  binding,  one  or  other  of  these  modes  must,  as 
I  understand  the  law  of  this  court,  be  resorted  to,  for  there  is  no  equity 
in  this  court  to  perfect  an  imperfect  gift.  The  cases,  I  think,  go  furtlier 
to  this  extent,  that,  if  the  settlement  is  intended  to  be  effectuated  by 
one  of  the  modes  to  which  I  have  referred,  the  court  will  not  give 
effect  to  it  by  applying  another  of  those  modes.  If  it  is  intended  to 
take  effect  by  transfer,  the  court  will  not  hold  tlie  intended  transfer  to 
operate  as  a  declaration  of  trust ;  for  then  every  imperfect  instrument 
w^ould  be  made  effectual  b}-  being  converted  into  a  perfect  trust.  These 
are  the  principles  b}'  which,  as  I  conceive,  this  case  must  be  tried. 

^  The  concurring  opinion  of  Lord  Justice  ICnight  Bruce  is  omitted,  as  well  as  the 
arguments  of  counsel.  —  Ed. 


SECT.  Vn.]  ♦  MILROY  V.  LORD.  153 

Applying,  then,  these  principles  to  the  ease,  there  is  not  here  any 
transfer  either  of  the  one  class  of  shares  or  of  the  other  to  the  objects 
of  the  settlement ;  and  the  question,  therefore,  must  be,  whether  a  valid 
and  effectual  trust  in  favor  of  those  objects  was  created  in  the  defend- 
ant Samuel  Lord,  or  the  settlor  himself,  as  to  all  or  any  of  these  shares. 
;Now,  it  is  plain  that  it  was  not  the  purpose  of  this  settlement,  or  the 
intention  of  the  settlor,  to  constitute  himself  a  trustee  of  the  bank 
shares.  The  mtentiou  was  that  the  trust  should  be  vested  in  the  de- 
fendant Samuel  Lord  ;  and  I  think,  therefore,  that  we  should  not  be 
justified  in  holding 'that,  by  the  settlement  or  by  any  parol  declaration 
made  by  the  settlor,  he  himself  became  a  trustee  of  these  shares  for 
the  purposes  of  the  settlement.  By  doing  so,  we  should  be  converting 
the  settlement  or  the  parol  declaration  to  a  purpose  wholly  different 
from  that  which  was  intended  to  be  effected  b}-  it,  and,  as  1  have  said, 
creating  a  perfect  trust  out  of  an  imperfect  transaction. 

His  Honor  the  Vice  Chancellor  seems  to  have  considered  that  the 
case  JSlc  parte  Pye  warranted  the  conclusion  that  the  settlor  himself 
became  a  trustee  b}'  virtue  of  the  power  of  attorney  which  he  had  given 
to  the  defendant  Samuel  Lord  ;  but  in  £/x  j^ci^'te  Pye  the  power  of  at- 
torney was  given  b}-  the  settlor  for  the  express  purpose  of  enabling  the 
annuity  to  be  transferred  to  the  object  of  the  settlor's  bounty.  The 
settlor  had,  it  appears,  already  directed  the  annuity  to  be  purchased  for 
the  benefit  of  that  object,  and  had  even  paid  over  the  money  for  the 
purpose  of  its  being  applied  to  the  purchase  of  the  annuity  ;  and  then, 
when  the  annuity  was,  from  the  necessity  of  the  case,  purchased  in  the 
settlor's  name,  all  that  possibly  could  be  wanted  was  to  show  that  the 
original  purpose  was  not  changed,  and  tliat  the  annuity,  though  pur- 
chased in  the  settlor's  name,  was  still  intended  for  the  benefit  of  the 
same  object  of  the  settlor's  bounty  ;  and  the  power  of  attorney  proved, 
beyond  all  doubt,  tliat  this  was  the  case.  These  facts  appear  to  me 
wholly  to  distinguish  this  case  from  the  case  of  Ex'iKirte  Pye.  Li  my 
opinion,  therefore,  this  decree  cannot  be  supported  upon  the  authority 
of  Ex  parte  Pye  ;  and  there  does  not  appear  to  me  to  be  any  sufficient 
around  to  warrant  us  in  holding  tiiat  the  settlor  himself  became  a 
trustee  of  these  bank  shares  for  tlie  purposes  of  this  settlement. 

The  more  dilficult  question  is,  wliethor  the  defendant  Samuel  Lord 
did  not  become  a  trustee  of  these  shares.  Upon  this  question  I  have 
felt  considerable  doubt ;  but,  in  the  result,  I  have  come  to  the  conclu- 
sion that  no  perfect  trust  was  over  created  in  him.  The  shares,  it  is 
clear,  were  n(!ver  legally  vested  in  him  ;  and  the  (jnly  ground  on  \\hich 
he  can  be  held  to  have  become  a  trustee  of  them  is,  that  lie  licld  a 
power  of  attorney  under  whicli  he  migiit  have  transferred  them  into  his 
own  name  ;  but  he  held  that  power  of  attorney  as  the  agent  of  tiie 
settlor;  and  if  he  had  bcon  sued  by  tlie  plaintiffs  as  trustee  of  the  set- 
tlement for  an  account  under  the  trust,  and  to  compel  him  to  transfer 
the  shares  into  his  own  name  as  trustee,  I  think  he  might  well  have 
said  :  These  shares  are  not  vested  in  me  ;  I  have  no  power  over  them, 


154  MILROY   V.    LORD.  *  [CIIAP.  L 

except  as  the  agent  of  the  settlor  ;  and  without  his  express  directions,  I 
cannot  be  jiistitied  in  making  the  proposed  transfer,  in  converting  an 
intended  into  an  actual  settlement.  A  court  of  equity  could  not,  I 
think,  decree  the  agent  of  the  settlor  to  make  the  transfer,  unless  it 
could  decree  the  settlor  himself  to  do  so ;  and  it  is  plain  that  no  such 
decree  could  have  been  made  against  the  settlor.  In  nn-  opinion, 
therefore,  this  decree  cannot  be  maintained  as  to  the  lifty  Louisiana 
Bank  shares. 

As  to  the  thirteen  North  American  fire  insurance  shares,  the  case 
seems  to  me  to  stand  upon  a  different  footing.  Although  the  plaintitts' 
case  fails  as  to  the  capital  of  the  bank  shares,  there  can,  I  think,  be  no 
doubt  that  the  settlor  made  a  perfect  gift  to  Mrs.  Milroy,  then  Miss 
Dudgeon,  of  the  dividends  upon  these  shares,  so  far  as  they  were 
handed  over  or  treated  by  him  as  belonging  to  her ;  and  these  insur- 
ance shares  were  purchased  with  dividends  which  were  so  handed  over 
or  treated.  It  seems  to  me,  upon  the  evidence,  that  these  shares  were 
purchased  with  the  money  of  Mrs.  Milroy,  then  Miss  Dudgeon,  and 
that  the  purchase  having  been  made  in  Thomas  Medley's  name,  there 
would  be  a  resulting  trust  for  Miss  Dudgeon.  I  think,  therefore,  that 
as  to  these  shares  the  decree  is  right,  —  the  value  of  the  shares  being, 
as  I  presume,  under  £200,  so  that  the  case  does  not  fall  within  the 
ordinary  rule  of  the  court  as  to  the  wife's  equity  for  a  settlement. 

The  case  being  thus  disposed  of  as  to  the  title  to  the  shares,  I  see  no 
ground  for  the  claim  to  compensation  raised  by  this  bill.  The  certifi- 
cates for  the  shares  would  follow  the  legal  title,  and  as  to  the  fifty  bank 
shares  would  therefore  belong  to  the  defendant  J.  A.  Otto,  and  as  to 
the  thirteen  insurance  shares  the  plaintiflTs  recovering  those  shares  must 
recover  the  certificates  also ;  but  this  not  being  provided  for  by  the  de- 
cree, a  direction  for  the  deliver}'  of  these  certificates  should,  I  think, 
be  added. 

Upon  the  hearing  of  this  appeal,  it  was  contended  for  the  plaintiflTs 
that,  so  far  as  they  might  fail  in  recovering  any  of  the  shares  in  ques- 
tion, they  were  entitled  to  I'ecover  the  value  of  them  against  the  estate 
of  Thomas  Medle}'.  I  am  not  sure  that  this  point  can  properly  be  con- 
sidered to  be  open  upon  these  pleadings  ;  but,  whether  it  be  so  or  not,  I 
agree  with  my  learned  brother  that  the  plaintiffs'  claim  in  this  respect 
cannot  be  maintained.  There  is  no  express  covenant  in  the  settlement ; 
and  whatever  might  be  done  as  to  implying  a  covenant  to  do  no  act  in 
derogation  of  the  settlement,  it  would,  I  think,  be  going  too  far  to  im- 
ply a  covenant  to  perfect  it.  If  there  be  a  breach  of  any  implied  cove- 
nant by  the  delivery  of  the  certificates  to  the  defendant  J.  A.  Otto,  the 
plaintiffs'  remedy  sounds  in  damages,  and  they  may  pursue  that  remedy 
at  law ;  for  which  purpose,  if  the  plaintiffs  desire  it,  there  may  be  in- 
serted in  the  decree  a  direction  that  they  be  at  liberty  to  use  the  name 
of  the  defendant  Lord,  — of  course  upon  the  usual  terms  of  indemnif^y- 
ing  him.  I  have  not  adverted  to  the  point  which  was  raised  as  to  this 
case  being  governed  by  the  Spanish  law  ;  for  I  think  that,  if  that  law 


SECT.  VII.]  MILROY  V.    LORD.  155 

was  more  favorable  to  the  plaintiffs,  the  onus  was  upon  them  X  >  allege 
and  prove  it.  As  to  the  costs  of  the  suit,  m^'  learned  brother  being  of 
opinion  that  the}-  ought  to  be  paid  out  of  the  settlor's  estate,  I  do  not 
dissent.  Tlie  decree  must  be  altered  accordingly,  as  to  the  several 
points  to  which  I  have  referred.^ 

^  The  doctriue  of  the  principal  case,  that  an  intended  gift  of  shares  cannot  be  con-  I 
verted  into  an  unintended  trust,  has  been  repeatedly  affirmed.  Antrobus  v.  Smith,  12 
Ves.  39;  Searle  v.  Law,  15  Sim.  95;  Dillon  i:  Coppin,  4  My.  &  Cr.  G47;  Weale  v. 
Ollive,  17  Beav.  252;  Beech  v.  Keep,  18  Beav.  285;  Lambert  V.Overton,  II  L.  T.  Kep. 
503  ;  11  W.  K.  217  s.  c. ;  Moore  v.  Moore,  18  Eq.  474 ;  Heartley  v.  Nicholson,  19  Eq. 
233  ;  £x  parte  Todd,  19  Q.  B.  Div.  186  ;  West  v.  West,  L.  R.  9  Ir.  121 ;  I'ennington  v. 
Gitting,  2  Gill  &  J  208;  Baltimore  Co.  v.  Mali,  65  Md.  93. 

But,  on  the  other  hand,  a  registration  of  the  transfer  on  the  books  of  the  company 
is  not  essential  to  the  validity  of  a  gift  of  shares.  A  delivery  of  the  certificates, 
coupled  with  the  execution  of  an  e.xpress  power  of  attorney  to  the  donee  to  transfer 
the  shares  on  tlie  company's  books,  makes  him  substantially  dowinus  of  the  shares, 
since  he  needs  no  further  assistance  from  the  donur,  and  can  compel  registration  by 
the  company.  Milroy  v.  Lord,  supra,  153,  154  {semble) ,  Kiddill  v.  Farrell,  3  Sm.  &  G. 
428 ,  West  V  West,  L.  R.  9  Ir.  121,  126  ;  Stone  v.  Hackett,  12  Gray,  227  ;  Walker  v. 
Dixon  Co.,  47  N.  J.  Eq.  342  ;  Matthews  v.  Hoagland  (N.  J  Eq,  1891),  21  Atl.  R.  1054 ; 
Cushman  v.  Thayer  Co.,  76  N.  Y  365.  The  case  of  Weale  v.  Ollive,  17  Beav.  252,  is 
contra,  but  the  authority  of  Lord  Roinilly's  decision  in  tiiis  case  seems  to  have  been 
unconsciously  discarded  by  himself  in  Pearson  v.  Amicable  Co.,  27  Beav.  229,  supra, 
p.  139,  n.  1.  See  also  AVood ford  v  Charnley,  28  Beav.  96,  101.  In  Pennington  i;.  Git- 
tings,  2  Gill  &  J.  208,  a  bill  by  tiie  donee  against. the  executor  of  the  donor  to  compel  a 
transfer  on  the  books  of  the  company  was  rightly  dismissed.  But  the  case  has  been 
treated,  in  Maryland,  as  deciding  that  there  cannot  be  a  valid  gift  of  sliares  unless  tlie 
transfer  is  made  on  the  books  of  the  company,  and  that  the  donee  cannot*  compel  regis- 
tration by  a  proceeding  against  the  company.     Baltimore  Co.  c.  Mali,  65  Md.  93  ' 

A  deed  of  transfer,  with  an  express  power  of  attorney,  should  be  as  effectual  as  a 
delivery  of  the  certificates.  It  was  so  decided  in  Grymes  c  Hone,  49  N.  Y.  17  (a  domitio 
mortis  causa).  Bizzey  v.  Flight  (a  gift  inter  vivos)  is  contra  ;  but  this  case  can  hardly 
■tand  with  Re  Patrick,  '91,  1  Ch.  82. 

Nor  is  an  express  power  of  attorney  indispensable.  A  delivery  of  the  certificates 
as  a  gift  carries  by  necessary  implication  a  power  to  transfer  the  shares  on  the  com- 
pany's books,  and  this  ini|)lif'd  power  is  as  effectual  as  an  exjiross  power  to  give  the 
donee  dominion  over  the  shares,  whether  the  transaction  be  a  gift  inter  vivos:  Allertou 
V.  Lang,  10  Bosw.  362  ;  Ridden  v.  Thrall,  125  N.  Y.  572,  577  (semhie) ;  Commonwealth 
t;.  Crompton,  137  Pa.  138  (but  see,  contra,  Mattliows  v.  Hoagland  [N.  J.  Eq.,  1891],  21 
Atl.  J{.  1054)  ,  or  a  donutio  mortis  causa:  Walsh  v.  Sexton,  55  Barb.  251. 

A  deed  of  transfer  should  have  the  same  effect  as  a  delivery.  But  no  authorities 
have  been  found  on  this  point.     See  sujira,  p.  139,  n.  1  ;  p.  145,  n.  1  ;  in/ra,  p.  163,  n.  4. 

An  attempted  gift  of  certificates  of  stock  by  a  husband  to  his  wife,  wliether  by 
deed  or  delivery,  is  of  course  inoperative  at  common  law,  ami  should  be  equally  .so  iu 
<;(|uity.  Such  is  the  law  iu  England.  Moore  v.  Mootc,  18  E(j  474.  But  in  tins 
country,  such  a  transaction  not  being  regarded  .as  a  gift,  but  as  a  contract  founded 
upon  a  mf-rit,ori«)Us  consideration,  the  wife  woii]<l  probaldy  be  treated  as  having  the 
♦Mjuilable  interest  in  the  sliares.     See  su/n-ti,  p.  HO,  n.  1  ;  infra,  p.  175,  u.  I. 

Savinoh  Bank  Books.  — There  seems  to  be  a  strong  analogy  between  a  depositor's  i 
savings  bank  book  and  a  stock  certificate,  and,  as  inigiit  i)e  cxpectecl,  the  re(|iiisite3 
of  a  gratuitous  transfer  are  the  same  for  each.  Thus,  a  ilelivcry  of  tlie  book  with  au 
express  power  of  attorney  to  collect  the  money  gives  the  donee  an  irrevocable  right  to 
the  fund,  (lifts  intir  vivos:  Savings  Rank  v.  Fogg,  82  Me.  53R,  541  {semfilc)  ;  Kim- 
ball r.-Lclano,  110  Mass.  325;  Foss  v.  Lowell  Hank,  111  Ma.s8  285;  Davis  v  Ney,  125 
Maas.  390 ,  Peufield  v.  Thayer,  2  E.  D.  Sm.  305  (see  Curry  c.  Powers,  70  N.  Y.  212); 


156  RICHARDSON   V.    RICHARDSON.  [CHAP.  I. 


RICHARDSON  v.   RICHARDSON. 
In  Chancery,  before  Sir  W.  Page  Wood,  V.C,  February  15,  1867. 

[Reported  in  Law  Reports,  3  Equity,  686.] 

Feb.  26,  Sir  W.  Page  Wood,  V.  C  The  sole  questiou  in  this  case 
is,  whether  a  legatee,  under  the  will  of  the  testator,  Ilicliard  Richard- 
son, of  a  sum  of  £1,250,  ought  or  ought  not  to  submit  to  a  deduction 
of  .-B450,  in  respect  of  two  promissory  notes  given  by  him  to  his  sister, 
which  involves  the  further  question  whether  the  testator  was  or  was 
not  the  absolute  owner  of  the  notes.  If  he  was  the  owner,  though  he 
demanded  no  interest  upon  the  notes,  and  made  no  application  for  pay- 
Providence  Inst,  V.  Taft,  14  R.  I.  502.  Donntiones  causa  mortis:  Sheedy  v.  Roach, 
124  Mass.  472;  Ridden  v.  Thrall,  125  N.  Y.  572. 

The  same  is  true  of  a  delivery  by  way  of  gift  without  an  express  power  of  at- 
torney. Gifts  inter  vivos :  Camp's  Appeal,  36  Coim'.  88 ;  Schollmier  v.  Schoeudelen, 
78  Iowa,  426;  Hill  v.  Stevenson,  63  Me.  364  ;  Peufield  v.  Thayer,  2  E.  D.  Sm.  305; 
Hoar  V.  Hoar,  5  Redf.  637  {sembte) ;  (compare  Curry  v.  Powers,  70  N.  Y.  212  ;)  Provi- 
dence Inst.  V.  Taft,  14  R.  I.  502.  Donationes  causa  mortis:  Drew  v.  Hagerty,  81  Me. 
231  (semble);  Pierce  v.  Boston  Bank,  129  Mass.  425;  Fiero  v.  Fiero,  5  Th.  &  C.  151 
(sembte) ;  Tillinghast  v.  Wheaton,  8  R.  I.  536;  Case  v.  Deuuisou,  9  U.  I.  88  (semble)  ; 
Dean  v.  Dean,  43  Vt.  337  {semble). 

But  see,  contra,  McGonnell  v.  Murray,  Ir  R.  3  Eq.  460  (semble) ;  Murray  v.  Cannon, 
41  Md.  466  ;  (see  Dougherty  v.  Moore,  71  Md.  248,  251  ;)  Walsh's  Appeal,  122  Pa.  177 
The  decision  in  this  Pennsylvania  case  was  the  result  of  a  peculiar  conception  of  the 
nature  of  a  savings  bank  book,  the  court  apparently  treating  it  like  a  depositor's 
pass-book,  which  is  altogether  different  from  a  stock  certificate.  Beak  v.  Beak,  13  Eq. 
489;  Ashbrook  v.  Ryan,  2  Bush,  228. 

Bank  Dkposit  Receipt  or  Note. —  A  depositor  in  a  bank,  who  takes  a  receipt 
or  non-negotiable  note  for  the  same,  to  be  presented  on  payment,  should  be  able  to 
make  a  gift  of  the  same  as  freely  as  the  holder  of  a  savings  bank  book.  In  this 
country  a  delivery  of  the  receipt  or  note  would  perfect  the  gift  wiiether  inter  vivos  or 
mortis  causa.  In  England,  delivery  would  be  enough  in  the  case  of  a  donatio  mortis 
causa.  Moore  v.  Darton,  supra,  39  ;  Amis  v.  AVitt,  33  Beav.  619, 1  B.  &  S.  109  ;  Moore 
V.  Moore,  18  Eq.  474  ;  Re  Dillon,  44  Ch.  Div.  76 ;  Cas.sidy  v.  Belfast  Co.,  22  L.  R  Ir  68 
(but  see  M'Gonnell  v.  Murray,  Ir.  R.  3  Eq.  470) ;  M'Cabe  v.  Robertson.  18  U.  C.  C  P. 
470  (semble) ;  (but  see  Ex  parte  Gerow,  5  All.  N.  B.  512).  But  it  seems  to  be  thought 
that  delivery  inter  vivos  would  not  give  the  donee  the  deposit.  Re  Dillon,  44  Ch.  Div. 
76  (semble) ;  Moore  v.  Ulster  Bank,  Ir  R.  11  C.  L.  517  ;  M'Cahe  >;.  Robertson,  18  U.  C. 
C  P.  470  (semble).  In  Scotland,  a  written  assignment  is  essential  even  in  the  case  of 
donatio  mortis  causa.    M'Nicol  v.  M'Dougall,  17  Ct.  of  Sess.  (18901,  25 

Even  in  jurisdictions  where  the  gift  is  ineffectual  unless  the  shares,  or  deposit,  are 
transferred  on  the  books  of  the  company  or  savings  bank,  the  donor  would  not  be 
allowed  to  recover  the  certificate  or  bank-book  after  he  had  once  delivered  them  with 
e  intention  of  vesting  them  in  the  donee.  See  supra,  p.  140,  n.  1  ;  p.  145,  n.  1; 
iiifra,  p.  162,  n.  4;  and  also  Walsh  v.  Saxton,  55  Barb.  251.  We  should  have,  then, 
this  extraordinary  condition  of  things  :  the  donee  unable  to  transfer  the  shares  or  col- 
lect the  deposit,  because  the  gift  is  not  deemed  complete ;  the  donor  equally  helpless, 
because  he  cannot  produce  the  certificate  or  bank-book;  the  company  or  hank,  on  the 
other  hand,  in  a  position  capriciously  to  recognize  either  the  donor  or  the  donee  as 
dominus  of  the  claim,  or,  indeed,  unless  they  come  to  some  compromise,  to  refuse 
with  safety  to  recognize  either.  — Ed. 

^  See  supra,  p.  70,  n   1  —  Ed. 


SECT.  VII.]  EICHARDSOX   V.    RICHARDSON.  157 

ment  of  them,  yet,  as  is  conceded,  the  Statute  of  Limitations  cannot 
be  set  up  ;  and  the  plaintiff  must  be  considered  as  having  received,  on 
account  of  his  legacy,  so  much  of  the  assets  of  the  testator  as  his  debt 
amounted  to. 

"Whether  or  not  the  notes  were  the  property  of  the  testator  depends 
upon  a  certain  voluntary  assignment,^  whereby  the  sister,  shortly  before 
her  death,  assigned  the  whole  of  her  personal  estate  to  her  brother, 
the  testator ;  and  in  the  same  instrument  she  gave  him  a  power  of 
attorney  to  ask,  sue  for,  and  recover  the  thereby  assigned  moneys 
and  premises,  and  to  do  and  execute  such  further  acts  and  deeds 
9.S  should  be  deemed  necessary  for  deriving  the  full  benefit  of  the 
assignment. 

i^ow,  there  is  no  specific  description  in  the  deed  of  the  promissory 
notes  ;  and,  if  they  passed  at  all,  they  passed  under  the  description  of 
''  all  other  the  personal  estate  and  effects,  whatsoever  and  whereso- 
ever," of  Elizabeth  Richardson.  She  did  not  indorse  the  notes ;  and 
the  defendants,  the  executors,  by  their  answer,  say  they  believe  that, 
if  she  had  not  died  so  soon,  the  testator  would  have  applied  to  her  to 
indorse  the  notes,  but  she  did  not  do  so.  The  questions  are :  first, 
whether  they  passed  by  the  deed  at  all ;  and,  secondly,  if  they  passed, 
whether  they  passed  to  the  testator  as  trustee;  or  in  his  own  right. 

After  the  decision  in  Kekewich  v.  Manning, ^  I  think  it  is  impossible 
to  contend  that  these  notes  did  not  pass  by  this  instrument,  because 
the  rule  laid  down  in  that  case,  the  decision  in  which  was  supported  by 
reference  to  Ex  parte  Pye,  was  not  confined  merely  to  this,  that  a  per- 
son who,  being  entitled  to  a  reversionary  interest,  or  to  stock  standing 
in  another's  name,  assigns  it  by  a  voluntary  deed,  thereby  passes  it, 
notwithstanding  that  he  does  not  in  formal  terms  declare  himself  to  be 
trustee  of  the  property  ;  but  it  amounts  to  this,  that  an  instrument  exe- 
cuted as  a  present  and  complete  assignment  (not  being  a  mere  covenant 
to  assign  on  a  future  day)  is  equivalent  to  a  declaration  of  trust. 

It  is  impossible  to  read  the  argument  in  that  case,  and  the  judgment 
of  Lord  Justice  Kniglit  I'ruce,  without  seeing  that  his  mind  was  di- 
rected to  Meek  v.  Kettlcwell,^  and  that  class  of  cases,  where  it  had 
been  held  (such  was  the  nicety  upon  which  the  decisions  turned)  that 
an  actual  assignment  is  nothing  more  than  an  agreement  to  assign  iu 
equity,  because  it  merely  passes  such  equitable  interest  as  tlic  assignor 
may  have  ;  and  some  further  stop  must  be  taken  l)y  the  assignee  to  ac- 
quire the  legal  interest.  That  furtiier  step  being  necessary,  the  assign- 
ment was  held  to  be  in  truth  nothing  l«it  an  agreement  to  assign,  and, 
being  so,  was  not  enforceable  in  tliis  Court,  —  the  Court  having  often 
decided  tliat  it  will  not  enforce  a  mere  voluntary  agreement. 

The  distinction,  undon])tedly,  was  very  fine  between  that  and  a  dec- 
laration of  trust ;  and  the  good  sense  of  the  decision  in  Kekewich  v. 

I  This  asHignmcnt  wom  under  seal,  and  the  notes  wore  delivered  to  the  testator 
-En. 

a  1  D  M.  &G.  170.  »  I  Hare,  464. 


loS  RICHARDSON    V.   RICHARDSON.  [ciIAr.  L 

Manning,  I  think,  lies  in  this,  that  the  real  distinction  should  be  made 
between  an  agreement  to  do  something  wlien  called  upon,  something 
distinctly  expressed  to  be  future  in  the  instnnnent,  and  an  instrument 
which  affects  to  pass  everything,  independently  of  the  legal  estate.  It 
was  held  iu  Kekewich  v.  Manning  tliat  such  an  instrument  operates  as 
an  out-and-out  assignment,  disposing  of  the  whole  of  the  assignor's 
equitable  interest,  and  that  such  a  declaration  of  trust  is  as  good  a 
form  as  any  that  can  be  devised.  The  expression  used  by  the  Lords 
Justices  is  this:  "A  declaration  of  trust  is  not  confined  to  any  ex- 
press form  of  words,  but  may  be  indicated  by  the  character  of  the 
instrument." 

In  that  case,  reference  was  made  in  the  argument  principally  to  the 
case  of  Ex  parte  Pye,  which  was  a  decision  of  Lord  Eldon  to  the  same 
effect.  Reliance  is  often  placed  on  the  circumstance  that  the  assignor 
has  done  all  he  can,  —  that  there  is  nothing  remaining  for  him  to  do  ; 
and  it  is  contended  that  he  must,  in  that  case  only,  be  taken  to  have 
made  a  complete  and  effectual  assignment.  But  that  is  not  the  sound 
doctrine  on  which  the  case  rests ;  for,  if  there  be  an  actual  declaration 
of  trust,  although  the  assignor  has  not  done  all  that  he  could  do,  —  for 
example,  although  he  has  not  given  notice  to  the  assignee,  —  yet  the 
interest  is  held  to  have  effectually  passed  as  between  the  donor  and 
donee.  The  difference  must  be  rested  simply  on  this :  aye  or  no,  has 
he  constituted  himself  a  trustee  ? 

In  Ex  parte  Pye,  the  testator  had  written  to  one  Dubost,  authorizing 
hira  to  purchase  in  France  an  annuity  for  the  benefit  of  a  lady  named 
Garos,  for  her  life,  with  power  to  draw  on  him  for  £1,500  for  such  pur- 
chase. The  agent,  finding  the  lady  was  a  married  woman,  exercised 
his  owm  discretion,  and  bought  the  annuity  in  the  name  of  the  testator. 
Then,  shortly  before  his  death,  the  testator  sent  to  Dubost,  by  his  de- 
sire, a  power  of  attorney  authorizing  him  to  transfer  the  annuity  to  the 
lady.  The  testator  died  before  anything  more  was  done  ;  and,  after  his 
death,  the  annuity  was  transferred.  There  was  a  question  whether,  by 
the  law  of  France,  the  exercise  of  a  power  of  attorney  by  the  person  to 
whom  it  is  given,  without  knowledge  of  the  death  of  his  principal,  is 
good.  I  think  the  Master  found  that  it  was  so ;  but  Lord  Eldon  ex- 
pressly declined  to  reply  upon  that,  as  he  says  in  his  judgment :  "  These 
petitions"  (the  question  came  on  upon  petition)  "  call  for  the  decision 
of  points  of  more  importance  and  difficulty  than  I  should  wish  to  decide 
in  this  way,  if  the  case  was  not  pressed  upon  the  Court.  With  regaid 
to  the  French  annuity,  the  Master  has  stated  his  opinion  as  to  the 
French  law, —  perhaps  without  sufficient  authority,  or  sufficient  inquiry 
into  the  effect  of  it, —  as  applicable  to  the  precise  dlrcumstances  of 
this  case ;  but  it  is  not  necessary  to  pursue  that,  as  upon  the  docu- 
ments before  me  it  does  appear  that,  though  in  one  sense  this  may 
be  represented  as  the  testator's  personal  estate,  yet  he  has  committed  to 
writing  what  seems  to  me  a  sufficient  declaration  that  he  held  this  part 
of  the  estate  in  trust  for  the  annuitant." 


SECT.  VII.]  GEOVER   V.   GROVER.  159 

Now,  the  testator  had  done  nothing  more  than  execute  the  power  of 
attorney.  It  is  true,  he  had  written  a  letter  directing  the  stock  to  be 
purchased  in  the  lady's  name  ;  but  that  was  not  done  ;  it  was  purchased 
in  his  name.  The  decision,  therefore,  could  only  be  rested  upon  this, 
that  this  was  not  an  agreement  to  assign,  not  an  agreement  to  become 
a  trustee  at  some  future  period,  but  an  actual  constitution  by  the  testa- 
tor of  himself  as  trustee. 

Following,  therefore,  Kekewich  v.  Manning,  I  must  regard  this  instru- 
ment as  having  effectually  assigned  the  promissory  notes,  although  they 
were  not  indorsed.  The  instrument  is  an  actual  assignment,  with  a 
power  immediately  vested  in  the  assignee  to  make  himself  master  of 
the  property  ;  and  1  do  not  know  in  what  way  the  assignor  could  have 
more  effectually  declared  that  she  was  a  trustee  of  that  property  for 
Kichard  Richardson. 


BENJAMIN  GROVER,  Administrator,  v.  CHARLES  W.  GROVER. 

In  the  Supreme  Judicial  Court,  Massachusetts,  October  17,  1835, 

March  20,  1837. 

[Reported  in  24  Pickering,  261.] 

Assumpsit  upon  a  promissory  note  made  by  the  defendant,  and 
payable  to  the  order  of  Hiram  S.  G rover,  the  plaintiff's  intestate. 

At  the  trial,  before  Putnam,  J.,  it  appeared  that  in  March,  1832, 
Grover  V.  Blanchard  called  to  see  the  iutestate.  Upon  an  inquiry 
being  made,  whether  the  intestate  had  put  on  record  a  deed  of  mort- 
gage given  to  secure  the  payment  of  the  note  in  question,  tlie  intestate 
produced  the  deed,  which  had  not  then  been  recorded,  and  the  note, 
and  said  to  Blanchard,  "  I  will  make  a  present  of  these  to  you,  if  you 
will  accept  them."  Blanchard  then  took  them  and  put  them  in  his 
pocket,  saying  that  he  would  accept  them  as  a  token  of  love,  or  affec- 
tion, or  rcHi)ect.  Before  th(;y  jtarted,  Blanchard  handed  them  back  to 
the  intestate,  saying  to  him,  ••'  You  may  keep  the  papers  until  I  call 
for  them,  or  collect  them  for  me."  No  assignment  was  made  on  the 
note  or  mortgage.  Afterwards  the  intestate  put  the  mortgage  deed 
on  record.  The  plaintiff,  after  the  death  of  the  intestate,  in  October, 
1832,  took  the  deed  from  the  register's  odlce,  and,  having  received  of 
the  defendant  payment  of  the  amount  secured  thereby,  discharged  the 
mortgage.  Upon  the  death  of  the  intestate,  the  note  was  found  in 
his  chest,  with  his  papers;  nnd  Blnnchnid  took  it,  refused  to  deliver  it 
to  the  plaintiff,  and  caused  this  action  to  be  brought. 

The  defendant  contended  :  1 .  That  no  valid  gift  of  a  chose  in  action 
could  be  made  inter  vivos  without  writing ;  2.  That  the  name  of  the 
donor,  or  of  the  administrator  or  executor  of  the  donor,  could  not  be 
used  without  his  consent,  in  an  action  brcight  for  the  use  of  the  donee  ; 


IGO  GllOVER   V.   GKOVER.  fciIAP.  I. 

and,  3.  That  tho  donor  could  not,  by  law,  act  as  the  agent  of  the  donee 
to  keep  tho  ii:ipors  or  collect  the  money. 

The  jury  found  tiuit  the  intestate  did  intend  to  give  the  property 
contained  in  the  note  and  mortgage,  absolutely,  to  Blanchard. 

The  whole  court  were  to  determine,  upon  these  facts,  whether  or  not 
the  property  passed  and  vested  in  Blanchard,  and  whether  or  not  he 
might  maintain  this  action  without  the  consent  of  the  nominal  plaintiff, 
for  his  own  use,  under  the  facts  and  circumstances  above  stated. 

Keyes  and  Farley^  for  the  defendant.^ 

Hoar,  for  the  plaintiff. 

Wilde,  J.,  delivered  the  opinion  of  the  Court.  The  jury  have  found 
that  the  deceased  intended  to  give  the  property  in  the  note,  and  in  the 
mortgage  made  to  secure  it,  absolutely,  to  Blanchard  ;  and  the  question 
is,  whether  by  the  rules  of  law  this  intention  can  be  carried  into  effect. 

It  is  objected  that  no  valid  gift  of  a  chose  in  action  can  be  made 
inter  vivos,  without  writing,  and  this  objection  would  be  well  main- 
tained, if  a  legal  transfer  of  a  chose  in  action  were  essential  to  give 
effect  to  a  gift.  But  as  a  good  and  effectual  equitable  assignment  of 
a  chose  in  action  may  be  made  by  jjarol,  and  as  courts  of  law  take 
notice  of  and  give  effect  to  such  assignments,  there  seems  to  be  no 
good  foundation  for  this  objection.  It  is  true  that  the  cases,  which 
are  numerous,  in  which  such  equitable  assignments  have  been  sup- 
ported, are  founded  on  assignments  for  a  valuable  consideration  ;  but 
there  is  little,  if  any,  distinction  in  this  respect  between  conti'acts  and 
gifts  inter  vivos;  the  latter,  indeed,  when  made  perfect  by  delivery  of 
the  things  given,  are  executed  contracts.  2  Kent's  Comm.  (3d  ed.) 
438.  By  delivery  and  acceptance  the  title  passes,  the  gift  becomes 
perfect,  and  is  irrevocable.  There  is,  therefore,  no  good  reason  why 
property  thus  acquired  should  not  be  protected  as  fully  and  effectually 
as  property  acquired  by  purchase.  And  so  we  think  that  a  gift  of  a 
chose  in  action,  provided  no  claims  of  creditors  interfere  to  affect  its 
validity,  ought  to  stand  on  the  same  footing  as  a  sale. 

The  cases  favorable  to  the  defence  do  not  depend  on  the  question 
whether  an  assignment  must  be  in  writing,  but  on  the  question  whether 
a  legal  transfer  is  not  necessary  to  give  validity  to  a  donation  of  a 
chose  in  action.  The  donation  of  a  note  of  hand  paj'able  to  bearer,  or 
of  bank-notes,  lottery  tickets,  and  the  like,  where  the  legal  title  passes 
by  delivery,  is  good  ;  for  by  the  form  of  the  contract  no  written  assign- 
ment is  necessary ;  but  as  to  all  other  choses  in  action,  negotiable 
securities  excepted,  it  has  been  held  in  several  cases  that  they  are  not 
subjects  of  donation  mortis  causa,  on  the  ground,  undoubtedly,  for 
I  can  imagine  no  other,  that  a  legal  assignment  is  necessary  to  give  ef- 
fect to  such  donations  ;  and  the  same  reason  would  apply  to  donations 
inter  vivos.  The  leading  case  on  this  point  is  that  of  Miller  v.  Miller,- 
in  which  it  was  held  that  the  gift  of  a  note,  being  a  mere  chose  in 

1  The  arguments  of  counsel  are  omitted.  —  Ed.  2  3  p.  Wms.  -356. 


SECT.  YII.]  GEOVER   V.   GROVER,  161 

action,  could  not  take  effect  as  a  donation  mortis  causa,  because  no 
property  therein  could  pass  by  delivery,  and  an  action  thereon  must 
be  sued  in  the  name  of  the  executor.  But  in  Snellgrave  v.  Bailey,^ 
Lord  Hardwicke  decided  that  the  gift  and  delivery  over  of  a  bond  was 
good  as  a  donation  mortis  causa,  on  the  ground  that  an  equitable 
assignment  of  the  bond  was  sufficient.  It  seems  to  be  very  difficult 
to  reconcile  the  two  cases.  The  distinction  suggested  by  Lord  Hard- 
wicke in  the  case  of  Ward  v.  Turner,'^  in  which  he  adheres  to  the 
decision  in  Snellgrave  v.  Bailey,  is  technical,  and,  to  my  mind,  unsat- 
isfactory ;  and  certainly  has  no  application  to  our  laws,  which  place 
bonds  and  other  securities  on  the  same  footing.  We  cannot,  therefore, 
adopt  both  decisions  without  manifest  inconsistency ;  and  we  think, 
for  the  reasons  already  stated,  that  the  decision  in  Snellgrave  v.  Bailey 
is  supported  by  the  better  reasons,  and  is  more  conformable  to  general 
principles,  and  the  modern  decisions  in  respect  to  equitable  assign- 
ments. We  are,  therefore,  of  opinion  that  the  gift  of  the  note  of  hand 
in  question  is  valid ;  and  in  coming  to  this  conclusion  we  concur  with 
the  decision  in  the  case  of  Wright  c.  Wright,*  wherein  it  was  held  that 
the  gift  and  delivery  over  of  a  promissory  note,  mortis  causa,  is  valid 
in  law,  although  the  legal  title  did  not  pass  by  the  assignment. 

It  is  not  necessary  to  decide  whether  the  gift  of  the  mortgage  secU' 
rity  is  valid,  although  it  is  reported  to  have  been  said  by  the  Vice 
Chancellor,  in  the  case  of  Duffield  v.  E^lwes,^  that  a  mortgagor  was 
not  compellable  to  pay  the  mortgage  debt  without  having  back  the 
mortgage  estate  ;  and  for  that  and  other  reasons  he  decided  that  a 
mortgage  was  not  a  subject  of  a  gift  mortis  causa.  This  decision, 
however,  was  afterwards  overruled  in  the  House  of  Lords,  Duffield  v. 
Elwes,*  on  the  ground  that  the  gift  of  the  debt  operated  as  an  equi- 
table assignment  of  the  mortgage.  But  as  we  think  it  clear  that  the 
right  to  maintain  this  action  does  not  depend  on  that  question,  we 
give  no  opinion  in  regard  to  it. 

Another  objection  is,  that  if  the  gift  was  valid  and  complete,  by  the 
delivery  of  the  note,  it  was  annulled  ])y  the  redelivery  to  the  donor. 
We  think  this  objection  also  is  unfounded.  In  the  case  of  Bunn 
V.  Markham,"  fiibbs,  C.  J.  lays  it  down  as  a  well  settled  principle, 
that  if  after  a  donation  mortis  ca^lsa  the  donor  resumes  possession, 
he  thereby  revokes  and  annuls  the  donation.  This  is  tlie  law,  no 
doubt.  Whether  there  may  not  be  an  exception  to  this  rule,  when  the 
donor  takes  l)ack  the  tiling  given  at  the  request  of  tlie  donee,  for  a 
particular  purpose,  and  agrees  to  act  as  his  agent  under  circumstances 
negativing  every  presumption  that  he  intended  to  revoke  his  gift,  is  a 
question  which  it  is  not  necessary  now  to  consider ;  for  the  principle 
has  no  rfhition  to  a  donntion  intpr  rivofi.  Whoii  such  a  donation  is 
completed  by  d(;livery,  the  property  vests  immediately  and  irrevocably 
in  the  donee  ;  and  the  donor  has  no  more  right  over  it  than  any  other 

»  .3  Atk.  214.  2  2  Vea.  Sen.  431.  »  1  Cowen,  598. 

*  1  t>im,&  Stn.  243.  &  1  IJIi^'h  N.  R.  497.  «  7  Taunt.  230. 

11 


102  GROVER  V.   GROVEK.  [CHAP.  L 

person.  But  a  donation  mortis  causa  does  not  pass  a  title  in)medi- 
ately,  but  is  only  to  take  effect  on  the  death  of  the  donor,  who  in  tiie 
mean  time  has  the  power  of  revocation,  and  may  at  any  time  resume 
possession  and  annul  the  gift. 

The  last  objection  to  the  maintenance  of  this  action  by  Blanchard, 
in  the  name  of  the  administrator,  has  been  sufficiently  answered  in 
considering  the  first  objection.  It  is  contended  that  the  consent  of 
tlie  administrator  is  necessary.  But  if  an  equitable  assignment  is  suf- 
ficient to  complete  the  gift,  it  follows  that  the  administrator  is  trustee, 
and  cannot  set  up  his  legal  right  in  order  to  defeat  the  trust.  This  is 
fully  established  by  the  cases  of  Dulfield  v.  Elwes,^  Hunt  v.  Beach,'^ 
and  Duffield  v.  Hicks. ^ 

Judgment  for  plaintiff  for  the  use  of  Blanchard.* 

1  1  Bligh  N.  R.  497.  2  5  Madd.  Ch.  351.  »  1  Dow,  1. 

*  Gifs  inter  Vivos.  Jones  v.  Deyer,  16  Ala.  221,  225  (semble) ;  O'Connor  v.  Mc- 
Hugh,  89  Ala.  531;  McHugh  v.  O'Connor,  91  Ala.  243  (semble);  Buachian  v.  Ilug- 
hart,  28  Ind.  449  (semble) ;  Gammon  Seminary  v.  Robbius,  128  Ind.  85  (semble) ;  Meri- 
wether V.  Morrison,  78  Ky.  572 ;  Wing  i'.  Merchant,  57  Me.  383 ;  Trowbridge  w. 
HolJen,  58  Me.  117;  Hale  v.  Rice,  124  Mass.  292;  Lyle  v.  Burke,  40  Mich.  499; 
Malone  r.  Doyle,  56  Mich.  222  (semble);  Marston  v.  Marston,  21  N.  H.  491;  Wcs- 
terlo  V.  De  Witt,  36  N  Y.  340  (semble) ;  Mack  v.  Hun,  3  Hun,  323 ;  Montgomery  v.  Mil- 
ler, 3  Redf.  154  (semble);  Scott  v.  Lanman,  104  Pa.  593  (semble);  Horner's  App.,  2 
Pennyp.  289  (semble-);  Hopkins  v.  iSIanchcster,  16  R.  I.  663;  Brunson  v.  Brunson, 
Meigs,  630;  Carpenter  v.  Dodge,  20  Vt.  595  (seiiible) ;  Wilson  v.  Carpenter,  17  Wis. 
512  (semble)  ;  Rupert  v.  Johnston,  40  U.  C.  Q.  B.  11,  16  (semble)  Accord. 

Lee  V.  Magrath,  L.  R.  10  Ir.  313;  Hitch  v.  Davis,  3  Md.  Ch.  266  Contra. 

In  Fairly  v.  McLean,  11  Ired.  158 ;  Brickhouse  v.  Brickhouse,  1 1  Ired.  404  ;  and  Over- 
ton i;.  Sawyer,  7  Jones  (N.  Ca.),  6,  the  donor  of  a  note  was  allowed  to  maintain  trover 
against  the  donee.  But  these  cases,  which  are  plainly  erroneous,  su/ira,  p.  140,  n.  1, 
p.  145,  n.  1,  p.  156,  n.  1,  are  no  longer  law,  even  in  North  Carolina.  Kiff  v.  Weaver, 
94  N.  Ca.  274,  277,  278. 

If  a  note  is  secured  by  mortgage,  a  delivery  of  the  note  by  way  of  gift  will  give  the 
donee  the  equitable  interest  in  the  mortgage  <as  an  incident.  O'Connor  v.  McHugh, 
89  Ala.  531 ;  McHugh  v.  O'Connor,  91  Ala.  243.  But  see,  contra,  Tiffany  v.  Clark,  6 
Grant,  Ch.  474,  481.  On  the  other  hand,  a  delivery  of  the  mortgage  deed  without  the 
note  gives  the  donee  no  interest  in  the  note.     See  cases  just  cited. 

Gijls  mortis  causa.  Rankin  v.  Weguolin,  27  Beav.  309  ;  Veal  v.  Veal,  27  Beav.  303  ; 
Amis  V.  Witt,  33  Beav.  619,  1  B.  &  S.  109 ;  Moore  v.  Moore,  18  Eq.  474 ;  Re  Taylor,  56 
L.  J.  Ch.  597  ;  lie  Farman,  57  L.  J.  Ch.  637;  Austin  v.  Mead,  15  Ch.  D.  651  ;  Clement 
V.  Cheeseman,  27  Ch.  D.  631  ;  Re  Dillon,  44  Ch.  Div.  76 :  Cassidy  r.  Belfast  Co.,  22 
L.  R.  Ir.  68 ;  Blain  v.  Terryberry,  9  Grant,  Ch.  286  ;  Basket  v.  Hassell,  107  U.  S.  602 
(semble)  ;  Jones  v.  Deyer,  16  Ala.  221 ;  Connor  v.  Root,  11  Col.  183  ;  Brown  r.  Brown, 
18  Conn.  410;  Turpin  v.  Thompson,  2  Met.  (Ky.)  420;  Ashbrook  v.  Ryon,  2  Bush, 
228;  Southerland  y.  Southerland,  5  Bu.sh,  591 ;  Borneman  v.  Sidlinger,  15  Me.  429  ; 
21  Me.  185  ;  Sessions  v.  Moseley,  4  Cush.  87;  Bates  v.  Kempton,  7  Gray,  382  ;  Cha.so 
V.  Redding,  13  Gray,  418  ;  Coutant  v.  Schuyler,  1  Paige,  316  ;  Westerlo  v.  De  Witt,  36 
N.  Y.  340;  Gourlcy  v.  Linsenbigler,  51  Pa.  345  (semble) ;  Overton  v.  Sawyer,  7  Jones 
(N.  Ca-),  6  (semble) ;  Brunson  v.  Brunson,  Meigs,  630  ;  Caldwell  v.  Renfrew,  33  Vt.  213 
Accord. 

A  gift  accompanied  by  delivery  is  effectual  in  the  case  of  other  documents  in  the 
nature  of  specialty  obligations,  e.  g. :  — 

Lottery  Tickets.  '' 

Gift  inter  vivos.     Grnngiac  i-.  Arden,  10  .Johns.  293. 
Gijl  mortis  causa.     Gold  v.  Rutland,  1  Eq.  Ab.  346. 


SECT.  VII.]  GKOVER   V.    GROVER.  163 

Exchequer  Tally. 
Giji  mortis  causa.    Jones  v.   Selby,  Prec.  Ch.  300  (semble). 

A  deed  of  gift  of  a  note,  a  ticket,  tally,  and  the  like,  is  as  effectual  as  delivery. 
Blakeley  v.  Brady,  2  Dr.  &  Walsh,  311  (scmb'e) ;  Walker  v.  Crews,  73  Ala.  412  (over- 
ruling Eorum  v.  King,  37  Ala.  60G;.  —  Ed.  -jf^' 

G'lfl  of  parol  choses  m  action.  If  a  chose  in  action  is  not/in  the  form  of  a  common 
law  or  mercantile  specialty,  so  that  there  is  no  document  no  pass  by  delivery  or  deed, 
a  gift  of  it  by  the  obligee  is  so  far  opei-ative  as  a  power  off  attorney,  that  the  obligor 
cannot  set  up  the  gratuitous  character  of  the  assignment  against  the  donee.  Walker 
V.  Bradford  Bank,  12  (^  B.  1).  511 ;  Harding  v.  Harding,  17  Q.  B.  D.  442;  Richard- 
son v.  Mead,  27  Barb.  178;  Merrick  v.  Brainard,  38  Barb.  574;  Allen  v.  Brown,  51 
Barb.  86  ;  Buxton  r.  Barrett,  14  H.  I.  40.  But  see,  contra,  Note,  Brownlow,  40 ;  Patter- 
son V.  Williams,  LL  &  G.  t.  PI.  95;  Hill  v.  Sheibley,  64  Ga.  529 ;  Tallman  v.  Hoey,  89 
N.  Y.  537  (semUe).  It  seems  to  be  conceded,  however,  that  the  donor  may  revoke  the 
power  of  attorney.  The  reason  for  this  concession  is  not  obvious.  If  warranted,  the 
donor's  death  should  likewise  revoke  the  power  of  attorney.  There  are  decisions  to 
this  effect:  Se.vell  r.  Mo.xsy,  2  Sim.  n.  s.  189;  Re  Richardson,  30  Ch.  Div.  396; 
Smither  v.  Smither,  30  Hun,  632  (semble,  reversing  s.  c.  1  Dem.  399).  But  there  are 
also  decisions  to  the  contrary:  Airey  v.  Hall,  3  Sm.  &  G.  315,  324;  De  Caumout  i-. 
Bogert,  36  Hun,  382;  Head  v.  Long,  4  Yerg.  68.  —  Ed. 


.l/ 


164  SLANNING   V.    STYLE.  [CHAP.  I. 


SLANNING  AND   Others  v.   STYLE  and  e  Contm. 
In  Cuanceuy,  before  Lord  Talbot,  C,  Michaelmas  Term,  1734. 

[Reported  in  3  Peere  Williams,  334.'] 

Three  sisters  and  their  liusbauds,  claiming  as  residuary  legatees 
under  the  will  of  Robert  Style,  brought  their  l)iil  against  his  widow  for 
divers  goods  of  the  testator  detained  by  her,  which  were  not  given  her 
by  the  said  will ;  and  the  widow  preferred  her  bill  for  goods  detained 
by  the  executors,  and  which  (as  was  alleged)  she  was  entitled  to  by 
the  will.2 

Another  thing  insisted  upon  on  behalf  of  the  defendant,  the  widow, 
was  that  the  testator  allowed  his  first  wife  to  dispose  and  make  profit 
of  all  such  butter,  eggs,  poultry,  pigs,  fruit,  and  other  trivial  matters 
arising  from  the  said  farm  (over  aud  besides  what  was  used  in  the 
family),  for  her  own  separate  use,  calling  it  her  "pin-money";  and 
upon  the  death  of  the  first  wife,  and  until  the  testator  married  the  de- 
fendant. Style,  the  testator's  sister,  the  defendant.  Felling,  kept  his 
house,  and  had  the  same  allowance,  which  was  also  continued  to  the 
defendant,^the  widow,  after  her  marriage,  by  way  of  "pin-money"; 
and  it  was  proved  in  the  cause  that  her  husband,  whenever  any  person 
came  to  buy  any  fowls,  pigs,  &c.,  would  say  he  had  nothing  to  do  with 
those  things,  which  were  his  wife's ;  and  that  he  also  confessed,  that, 
having  been  making  a  purchase  of  about  £1,000  value,  and  wanting 
some  money,  he  had  been  obliged  to  borrow  about  .£100  of  his  wife  to 
make  up  the  purchase  money ;  therefore  now  the  widow  claimed  to  be 
paid  this  £100. 

To  which  it  was  answered,  that  here  was  no  deed  touching  this 
agreement,  nor  any  writing  whatsoever,  whereby  to  raise  a  separate 
property  in  a  feme  covert,  wiiich  was  what  the  law  did  not  favor;  tliat 
it  was  no  more  than  a  connivance,  or  permission,  that  the  wife  should 
take  these  things  and  continue  to  enjoy  them  during  his  (the  husband's) 
pleasure,  which  pleasure  was  determined  by  his  death  ;  besides,  this 
agreement,  being  after  marriage,  was  but  a  voluntary  one,  for  M'hich  a 
court  of  equity  usually  leaves  the  party  to  take  his  remedy  at  law  ;  and 
that,  in  truth,  the  husband's  borrowing  this  £100  of  his  wife  was  no 
more  than  borrowing  his  own  money. 

But  the  Lord  Chancellor  decreed  that  the  widow,  the  defendant, 
was  well  entitled  to  come  in  for  this  £100  as  a  creditor  before  the 
Master,  observing  that  the  courts  of  equity  have  taken  notice  of  and 
allowed  feme  coverts  to  have  separate  interests  by  their  husbands' 
agreement;  and  this  £100  being  the  wife's  savings,  and  here  being 
evidence  that  the  husband  agreed  thereto,  it  seemed  but  a  reasonable 
encouragement  to  the  wife's  frugality,  and  such  agreement  would  be  of 

1  2Eq.  Ab.  156,  s.  c.  —  Ed. 

2  A  portion  of  the  case,  not  relating  to  the  law  of  trusts,  has  been  omitted.  —  Li*. 


SECT.  VII.]  BEARD   V.   BEARD.  165 

little  avail  were  it  to  determine  by  the  husband's  death  ;  that  it  was  the 
strongest  proof  of  the  husband's  consent,  that  the  wife  should  have  a 
separate  property  in  the  money  arising  by  these  savings,  in  that  he  had 
applied  to  her  and  prevailed  with  her  to  lend  him  this  sum  ;  in  which 
case  he  did  not  lay  claim  to  it  as  his  own,  but  submitted  to  borrow  it 
as  her  money. 

Wherefore,  and  especially  as  here  was  no  creditor  of  the  husband  to 
contend  with,  it  was  ordered  that  the  wife  should  be  allowed  to  come 
in  for  tliis  £100  as  a  creditor  before  the  Master ;  and  the  court  cited 
the  case  of  Calmady  v.  Calmady,  where  there  was  the  like  agreement 
made  betwixt  the  husband  and  wife,  that  upon  every  renewal  of  a  lease 
by  the  husband  two  guineas  should  be  paid  by  the  tenant  to  the  wife, 
and  this  was  allowed  to  be  her  separate  money.  ^ 


BEARD  V.  BEARD. 
In  Chaxcert,  before  Lord  Hardwicke,  C,  April  5^  1744. 

[Reported  m  3  Atkyns,  72.] 

The  plaintiff's  husband,  a  freeman  of  London,  being  at  variance 
with  his  wife,  in  January,  1739,  by  his  will,  executed  at  a  tavern, 
gives  all  his  estate,  real  and  personal,  to  his  brother,  and  makes  him 
his  executor. 

In  November,  1740,  by  a  deed  poll,  he  gives  and  grants  unto  his 
wife  all  his  substance  which  he  now  has  or  may  hereafter  have. 

The  ]n\\  was  brought  by  the  wife,  who  insists  upon  the  deed  poll, 
and  that  the  will  was  revoked  by  this  subsequent  act  of  the  husband  in 
bis  lifetime. 

The  counsel  for  the  plaintiff  cited  Boughton  v.  Boughton,  the  Tjth 
of    December,    IT.jO,^   and    Harvey  v.   Harvey,   November  the   12th, 

Lord  Ciiancrllor.  A  man  here  has  done  two  very  uuroasonablc 
acts ;  if  it  should  happen  one  trips  up  the  heels  of  the  other,  it  is  a 
very  fortunate  thing  to  set  everytiiing  right  again. 

1  Ward  V.  Bowynr,  Finch,  TiO  ;  IIcrluTt  v.  Ilorbcrt,  Prec.  Ch.  44  ;  Bains  >'.  Ballat, 
2  Eq.  Alir.  150,  Manzfy  v-  IIiniK'Tfonl,  2  Vj<\-  Alir  ('id  a].)  \:^>^>  ;  ("arler  v.  Wortliin^- 
ton.  82  Ala.  't.'ir) .  I5anp;.H  v.  KdwanLs,  88  Ala.  .382  ,  ();;lcsl»y  v.  Hall,  ."iO  (ia.  380  ,  Kco 
V  VaHscr,  2  Irod.  Iv|.  5.'i3  ;  Wood  v.  Warden,  20  Ohio,  518  ;  Tiuucy  v.  Fellows,  15  Vt. 
525  {srmhlp)  ,  St,itnHiin  r   White,  20  Wis.  502  (srmhte)  Accord. 

Ladv  'Pvrrfd's  (':ise,  Freetn.  .304  (Jontra. 

Conf.  Anhworth  t'.  Ontram.  5  Ch.  Div.  923  ;  Lovell  v.  Newton,  4  01'  D  7 ,  Rr. 
Deartner  (f'h.  T)  ),  .53  L.  T.  Rep.  905,  which  cases  were  decided  unilfr  the  Married 
Women's  I'n.jifrtv  Act,  .33  &  34  Vict.  c.  93  —  Kr». 

2  I  T.  Atk.  025.  8   llde  I  T   Alk.  5(11. 


106  RICE  V.    TRICE.  [chap.  I. 

A  wife  appears  bore  to  be  unprovided  for,  both  before  aud  after 
marriage. 

A  will  is  made  at  a  tavern,  probably  in  a  passion,  for  the  husband 
was  parted  from  his  wife  at  that  time,  by  which  he  gives  his  whole 
estate  to  his  brother. 

Afterwards  he  is  guilty  of  another  unreasonable  act,  —  a  gi't  to  his 
wife,  by  deed  poll,  of  all  his  substance. 

The  question  is.  Which  is  to  take  effect  ? 

The  latter  cannot  take  effect  us  a  grant  or  deed  of  gift  to  the  wife, 
because  the  law  will  not  permit  a  man  to  make  a  grant  or  conveyance 
to  the  wife  in  his  lifetime,  neither  will  this  court  suffer  the  wife  to  have 
the  whole  of  the  husband's  estate  while  he  is  living,  for  it  is  not  in  the 
nature  of  a  provision,  which  is  all  the  wife  is  entitled  to.^ 

He  declared,  likewise,  that  the  will  was  revoked  -  as  to  all  the  per- 
sonal estate  by  the  deed  poll,  and  yet  it  cannot  take  effect  as  a  gift  or 
grant  of  such  personal  estate  to  the  plaintiff,  but  the  said  personal 
estate  must  be  distributed. 


PRICE  V.   PRICE. 

In  Chancery,  before  Sir  John  Romilly,  M.R.,  November  25, 

December  2,  1851. 

[Reported  in  14  Beavan,  598.] 

On  the  8th  of  July,  1849,  George  Price,  the  late  husband  of  the 
plaintiff,  being  seised  in  fee  simple  of  the  messuage  in  question,  and 
in  which  he  and  his  wife  resided,  executed  a  deed  poll  in  these  words : 
"July  8th,  1849.  I  hereby  certify  that  I,  George  Price,  collier,  of 
Whitecroft,  in  the  township  of  West  Dean  and  county  of  Gloucester, 
for  and  in  consideration  of  the  good  will  which  I  bear  towards  my 
wife,  Esther  Price,  also  of  the  same  place,  have  given  and  granted, 
and  do  hereby  freely  give  and  grant,  to  the  said  Esther  Price,  in  the 
presence  of  my  uncle,  Samuel  Price,  of  the  same  place,  all  my  land, 
house,  and  chattels.  And  I  hereby  again  declare  that  I,  George  Price, 
have  absolutely  and  of  my  own  accord  given  and  granted  the  same, 
without  any  manner  of  condition,  to  the  aforesaid  Esther  Price,  and  it 
is  her  sole  and  absolute  property  henceforth  and  forever.  In  witness 
whereof,  I  have,  this  8th  day  of  July,  in  the  year  of  our  Lord  1849, 
Bet  my  hand  and  seal." 

1  Warliek  v.  White,  86  N.  Ca.  139  ;  Coakes  v.  Gerlach,  44  Pa.  43  Accord. 

But  a  husband's  orjft  of  his  entire  property  to  his  wife  was  upheld  in  Dale  v.  Lin- 
coln, 62  111.  22;  Wilder  v.  Brooks,  10  Minn.  50;  Thomp.son  v.  Allen,  103  Pa.  44; 
Jones  V.  Obenchain,  10  Grat.  259.     See  also  Seals  v.  Robin.son,  75  Ala.  363.  —  Ed. 

'  So  much  of  the  opinion  as  relates  to  the  question  of  revocation  is  omitted.  —  Ed. 


SECT.  VII.]  PRICE   V.   PRICE.  167 

The  deed  was  executed  by  George  Price,  and  witnessed  by  William 
Tanner  Sydney  and  Samuel  Trice. 

Upon  the  execution  of  the  deed,  the  grantor  delivered  it  into  the 
custody  of  one  of  the  witnesses  attesting  the  execution. 

On  the  20th  of  August,  1850,  George  Price  died  intestate,  nothing 
further  having  taken  place. 

Esther  Price  having  continued  in  possession,  Emma  Price,  the  heir- 
ess at  law  of  George  Price,  commenced  an  action  of  ejectment  against 
her,  and  obtained  a  verdict. 

Esther  Price  filed  the  present  bill  against  Emma  Price,  the  heiress 
at  law  of  George  Price,  praying  to  have  it  declared  that  the  defendant 
was  a  trustee  of  the  legal  estate  in  the  messuage,  for  the  benefit  of 
the  plaintiff ;  for  consequential  relief,  and  for  an  injunction  to  restrain 
execution  in  the  action  of  ejectment  brought  by  Emma  Price,  to 
recover  possession  of  the  property,  in  which  the  verdict  had  been 
obtained. 

The  common  injunction  had  been  obtained  for  want  of  answer; 
and,  the  answer  having  been  put  in,  the  plaintiff  now  showed  cause 
against  dissolving  the  injunction,  upon  the  merits  confessed  by  the 
answer.  ~  ♦• 

Mr.  Edclis,  for  the  plaintiff. 

Mr.  Sandys,  for  the  defendant.^ 

The  Master  of  the  Rolls.     I  will  consider  this  case. 

The  Master  of  the  Rolls.  It  is  not  disputed  that  the  deed  in 
question  was  wholly  inoperative  at  law  ;  but  the  plaintiff  contends  that 
this  deed  created  the  husband  a  trustee  for  the  separate  use  of  his 
wife,  and  that  the  heiress  at  law  of  the  intestate  became,  on  his  death 
and  in  like  manner,  a  trustee  for  the  plaintiff. 

Upon  the  statement  of  this  case  by  the  counsel  for  the  plaintiff  I 
entertained  a  strong  opinion  tliat  the  deed  did  Hot  create  any  trust 
which  this  court  could  enforce  ;  l)ut,  as  no  cases  were  then  called  to 
my  attention,  I  reserved  my  judgment,  in  the  apprehension  that  I 
might,  by  acting  upon  my  first  impression,  do  injustice  to  the  plaintiff, 
and  in  onler  that  I  jniglit  l)c  able  to  examine  tlic  later  authorities  on 
tills  Hubject.  'I'liis  examination  has  confirmed  me  in  tlie  view  I  origi- 
nally entertained,  that  this  deed  created  no  trust  that  this  court  can 
enforce. 

In  this  case,  it  is  first  to  be  considered  whether  tlie  deed  would  havo 
created  a  trust  enforceable  in  this  court  as  between  strangers  ;  and, 
if  it  would  not,  wiiether  the  circumstance  that  the  transaction  is  one 
between  luisijand  and  wife  produces  any  such  relation. 

As  between  strangers,  I  am  of  opinion  that  this  deed  would  have 
been  merely  inoperative  in  equity  as  well  as  at  law.  The  rule  of  courts 
of  equity  with  regard  to  gifts  inter  vivos  is,  that  they  will  ])e  enforced 
only  wiien  the  gift  is  completed,  and  when  nothing  remains  to  perfect 

*  The  arguments  of  counasl  are  omitted.  —  Ed. 


1G8  TRICE  V.  riiicE.  [chap.  I. 

the  title  of  the  donee.  The  cases  of  trust,  however,  are  not  exactly 
the  same  ;  for  if  the  owner  of  an  estate  in  fee  simple,  having  the  legal 
estate,  or  one  Avho  has  stock  standing  in  his  name,  execute  a  deed 
declaring  himself  to  be  a  trustee  of  the  estate  or  of  the  stock  for  the 
benefit  of  another,  and  he  delivers  that  instrument  to  the  cestui  que 
trust,  and  acts  upon  it,  although  no  conveyance  of  the  legal  estate  and 
no  transfer  of  the  stock  should  take  place,  (though  I  do  not  know  a 
case  precisely  in  poiut,^)  still  that  would  probably  be  suflicient  to 
create  a  trust,  and  the  observations  of  Lord  Eldon  in  Ex  parte  Pye  and 
Dubost  support  that  doctrine.  That  case^  however,  is  one  of  great 
peculiarity. 

But,  on  the  other  hand,  if  the  transaction  purports  to  be  a  gift,  and 
not  a  declaration  of  trust,  this  court  will  not  convert  an  imperfect  gift 
into  a  trust.  The  ease  of  Edwards  v.  Jones  is  distinct  on  this  point. 
The  obligee  of  the  bond,  in  that  case,  made  an  indorsement  on  it  in 
terms  very  similar  to  the  present  deed.  It  was  to  this  effect:  "I, 
Mary  Custance,  do  hereby  assign  and  transfer  the  within  bond  or 
obligation,  and  all  my  right,  title,  and  interest  thereto,  unto  and  to  the 
use  of  my  niece,  E.E.,  with  full  power  and  authority  for  the  said  E.  E. 
to  sue  for  and  recover  the  amount  thereof,  and  all  interest  now  due  or 
hereafter  to  become  due  thereon."  Both  Sir  L.  Shadwell,  originally, 
and  Lord  Cottenham,  on  appeal,  held  this  to  be  an  imperfect  gift  and 
not  a  trust,  and  that  the  relation  of  trustee  and  cestui  que  trust  was  not 
created.  This  case  was  commented  upon  with  approbation,  and  fol- 
lowed by  Vice  Chancellor  Wigram  and  Lord  Lyndhurst,  in  Meek  v. 
Kettlewell,^  and  I  have  no  doubt  but  that  it  correctly  states  the  law- 
elating  to  these  instruments. 

What  is  the  case  here?  The  instrument  does  not  profess  to  be  a 
aeclaration  of  trust,  but  to  be  a  distinct  gift.  The  giver  treats  it  as 
such,  and  parts  with  the  deed,  which,  if  he  had  meant  to  constitute 
himself  the  trustee,  he  should  not  have  done.  It  is,  in  truth,  not  a 
declaration  of  trust,  but  either  a  gift  of  the  whole  property  or  nothing. 
As  a  gift  it  is  clearly  inoperative ;  no  estate  passed,  and,  in  truth, 
nothing  took  place,  but  the  execution  of  the  deed,  the  communication 
of  it  to  the  wife,  and  the  delivery  of  it  to  the  attesting  witness.  If 
I  were  to  decide  that  this  deed  would  be  good  as  between  strangers,  I 

1  The  learned  judge  seems  to  have  overlooked  Wheatley  r.  Purr  (1837),  1  Keen, 
551,  and  Thorpe  v.  Owen  (1842),  5  Beav.  224.  As  late  as  1855,  however.  Lord  Cran- 
worth,  C.  said,  in  Scales  v.  Maude,  6  D.  M.  &^G.  43,  51  :  "  A  mere  declaration  of  trust 
by  the  owner  of  property  in  favor  of  a  volunteer  is  inoperative,  and  this  court  will 
not  interfere  in  such  a  case.  The  case  is  different  where  there  has  been  a  change  of 
legal  ownership,  and  so  a  trust  has  been  constituted,  and  then  the  court  will  inquire 
what  the  trusts  are.  But  there  is  no  authority  in  favor  of  the  defendant's  conten- 
tion." His  Lordship  corrected  this  diclum  in  .Jones  v.  Locke,  1  Ch.  Ap.  23,  28,  re- 
marking :  "  And  there  is  no  doubt  also  that,  by  some  decisions,  unfortunate  I  must 
think  them,  a  parol  declaration  of  trust  of  personalty  may  be  perfectly  valid  even 
when  voluntary."  —  Ed. 

2  1  Hare,  464. 


SECT.  VII.]  PRICE   V.   PRICE.  169 

should  really  be  deciding  that,  if  a  man  execute  a  deed,  simply  sajnng, 
"  I  hereby  give  all  my  estate  at  A.  to  another,"  and  nothing  further 
takes  place,  either  to  give  possession  or  to  transfer  the  legal  estate, 
this  court  would  compel  delivery  of  the  estate.  This  would,  in  my 
opinion,  be  contrary  to  the  authorities,  and  I  entertain  no  doubt  but 
that,  in  such  a  case,  equity  would  leave  the  parties  to  their  legal  rights, 
whatever  they  might  be,  and  would  not,  in  any  respect,  interfere  to 
assist  either  party.  The  observations  of  Sir  J.  Wigram  are  admira- 
bly accurate  and  distinct  on  this  head. 

The  next  question  is  this  :  This  was  a  transaction  between  husband 
and  wife  ;  the  deed  was  executed  for  the  benefit  of  the  wife  ;  it  is  ex- 
pressed to  be  for  her  sole  use.  Did  this  circumstance  give  to  the  trans- 
action a  different  character  from  that  which  it  would  have  had  if  it  had 
been  one  between  strangers?  "Was  there  a  good  trust  created  as  soon 
as  the  deed  was  executed?  In  other  words,  could  the  wife,  during  the 
life  of  the  husband,  have  maintained  a  bill  in  this  court,  by  her  next 
friend,  against  the  husband,  to  have  it  declared  that  he  was  a  trustee  of 
this  property,  and  to  have  the  trusts  applied  for  her  separate  use  ?  I 
am  of  opinion  that  no  such  bill  could  have  been  supported.  It  is  true 
that  Lord  Thurlow,  in  Colman  v.  Sarrel,  says  :  "  Whenever  you  come 
into  equity  to  raise  an  interest  by  way  of  trust,  there  must  be  a  valuable 
consideration,  or,  at  least,  what  a  court  of  equity  calls  a  meritorious 
consideration,  such  as  payment  of  debts,  or  making  a  provision  for  a 
wife  or  child."  This,  if  taken  literall}',  is,  I  think,  inaccurately  stated, 
because,  if  the  relation  of  trustee  and  cestui  que  trust  be  clearl}'  es- 
tablished, the  court  will  act  upon  it,  although  there  was  no  consideration 
at  all ;  but  if  it  be  meant  by  this  passage  that  instruments  importing  a 
gift  are  considered  in  a  different  point  of  view  wlien  there  is  a  merito- 
rious consideration  than  where  there  is  none  at  all,  or,  in  other  words, 
that  a  voluntary  gift  by  a  man  to  his  creditors,  or  to  his  wife  or  child, 
is  to  be  regarded  on  different  principles  from  one  to  a  stranger,  I  am 
unable  to  discover  on  what  principle  such  a  proposition  can  properly 
rest;  nor  can  I  find  it  supported  by  any  of  the  decided  cases. 

On  the  contrary,  the  oi)i)Osite  is  expressly  decided  in  the  case  of 
Jeffreys  v.  Jeffreys.'  In  that  case,  a  father,  by  a  voluntary  settle- 
ment, conveyed  certain  lands  to  trustees,  in  trust  to  pay  him  an  an- 
nuity for  his  life,  and,  after  his  death,  to  sell  and  divide  the  proceeds 
amongst  liis  danghtors  ;  and,  by  the  same  deed,  he  covenanted  to  sur- 
render certain  cojjyholds  to  the  uses  of  the  settlement,  but  which  he 
omitted  to  do.  The  court  executed  the  trust  of  the  freeholds,  tli.-it 
being  complete,  but  dismissed  the  bill  with  costs,  so  far  as  related  to 
the  copyholds. 

Upon  the  wliole,  therefore,  T  am  of  opinion  tliat  the  relation  of  trus- 
tee and  cpstni  fjnc  trust  was  not  created  in  tliis  case  ;  tluit  tlie  transac- 
tion was  an  imperfect  gift,  in  regard  to  which  equity  will  not  interfero 

»  Cr.  &  P.  138. 


170  BADDELF.Y   V.   BADDELEY.  [CIIAP.  I. 

to  assist  either  siile,  but  will  leave  the  parties  as  it  finds  thein,  and 
that,  cousequeutly,  this  injunction  must  be  dissolved.^ 


BADDELEY  v.   BADDELEY. 

In  the  High  Court  of  Justice,  before  Sir  Richard  Malins,  V.  C, 

July  24,  1878. 

[Reported  in  9  Chancery  Division,  113.] 

On  the  30th  of  April,  1872,  John  Baddeley  executed  a  deed  poll,  of 
which  the  material  part  was  as  follows  :  "  Whereas  I  am  beneficially 
possessed  of  the  ground  rents  hereby  intended  to  be  settled,  now  in 
consideration  of  my  love  and  affection  for  my  wife  I  do  hereby  settle, 
assign,  transfer,  and  set  over  unto  my  said  wife  Eliza  Baddeley  as 
though  she  were  a  single  woman,  her  executors^  administrators,  and 
assigns,  all  that  my  share  in  [certain  specified  houses  and  ground  rents 
in  Middlesex]  as  though  she  were  now  a,  feme  sole  and  unmarried,  and 
in  accordance  with  the  spirit  and  intention  of  the  recent  act  of  Farlia- 
■  meut  entitled  the  Married  Women's  Property  Act,  1870." 

This  deed  was  duly  registered  in  the  Middlesex  Registry,  and  Mrs. 
Baddeley  entered  into  the  receipt  of  the  rents. 

Mrs.  Baddeley  claimed  a  declaration  that  the  deed  poll  operated  as 
a  valid  assignment,  and  a  demurrer  to  the  claim  was  put  in  on  behalf 
of  Mr.  Baddeley's  legal  personal  representatives. 

J.  Pearson^  Q.  C,  and  Gregory,  for  the  legal  personal  represent- 
atives. 

Glasse,  Q.  C,  and  Metliold,  for  the  widow. '^ 
.  Malins,  V.  C.  No  one  can  doubt  that  the  husband's  intention  here 
was  to  give  his  wife  the  leasehold  property ;  but  it  is  contended  that 
the  deed  was  intended  to  be  an  assignment,  and  is  therefore  inoperative 
as  between  husband  and  wife.  No  doubt  a  voluntary  gift  by  way  of 
assignment  is  invalid,  unless  it  is  perfected  by  a  transfer ;  the  volun-i 
tary  settlor  must  do  all  that  he  can  do  to  transfer  the  property,  and  a 
husband  cannot  transfer  to  his  wife.  But  this  is,  in  my  opinion,  a  case 
where  the  husband  has  declared  himself  a  trustee  for  his  wife,  and  she 
entered  into  possession,  —  an  act  which  I  construe,  not  as  an  attempt 
to  take  possession  adversely  to  her  husband,  which  could  not  be  done, 
as  is  shown  by  Roe  v.  "Wilkins,^  but  as  a  taking  possession  of  her  sep- 

1  In  Wooflford  v.  Charnley,  28  Beav.  96,  where  one  who  held  the  legal  estate  in  a 
certain  freehold  to  secure  the  payment  of  .£5,000,  for  which  payment,  however,  no  one 
■was  personally  liable,  assigned,  by  a  voluntary  deed,  his  interest  in  the  said  £5,000,  to 
trustees  upon  certain  trusts  therein  declared,  Sir  John  Romilly,  M.  R.,  decided  that 
the  deed  was  wholly  inoperative.     See  Lane  v.  Ewing,  31  Mo.  75.  —  Ed. 

2  The  arguments  of  counsel  are  omitted,  —  Ed. 
»  4  A.  &  E.  86. 


SECT.  YII.]  IN  KE   BRETON'S  ESTATE.  171 

arate  property  under  the  trust.  The  husband  was  no  dorbt  mistaken 
in  thinking  he  could  make  this  gift  by  way  of  assignment ;  but  there 
is  enough  in  the  deed  to  make  it  operate  as  a  declaration  of  trust  which 
the  court  ought  to  carry  into  effect.  The  law  on  this  subject  is  cor- 
rectly stated  in  Grant  v.  Grant, ^  and  I  am  not  disposed  to  disagree 
with  Richardson  v.  Richardson  and  Morgan  v.  Malleson,  notwith- 
standing the  remarks  of  Sir  G.  Jessel  in  Richards  v.  Delbridge.  I 
therefore  declare  that  there  is  a  trust  properly  constituted  in  favor 
of  Mrs.  Baddeley.- 


IN  RE  BRETON'S  ESTATE.     BRETON  v.  WOOLLVEN. 
In  Chanceuy,  before  Sir  Charles  Hall,  V.  C,  April  2,  1881. 

[Reported  in  Law  Reports,  17  Chancery  Division,  416.] 

Frederick  Breton,  who  died  on  the  7th  of  June,  1880,  by  his  will, 
dated  the  8th  of  August,  1878,  appointed  two  executors  and  trustees, 
and  after  bequeathing  certain  pecuniary  legacies,  and  making  a  specific 
bequest  to  the  widow  of  a  late  brother,  and  specifically  devising  certain 
freehold  property,  bequeathed  all  the  residue  of  his  property  and 
effects  to  his  trustees  upon  trust  at  their  discretion  to  continue  them 
or  to  make  other  investments  of  the  moneys  which  were  vested  in 
them,  and  to  permit  his  wife  to  receive  the  income  of  his  residuary 

1  34  Beav.  623. 

2  Fox  V.  Hawks,  13  Ch.  D.  822;  Jones  v.  Clifton,  lOl  U.  S.  225;  Moore  v.  Page, 
111  U.  S.  117;  McMillan  v.  Peacock,  57  Ala.  127;  Helmetag  v.  Frank,  61  Ala.  67; 
Barker  v.  Konernan,  13  Cal.  9  (semhle) ;  Dale  v.  Lincoln,  62  111.  22;  Majors  v.  Ever- 
ton,  89  111.  56;  Sanfurd  v.  Finkle,  112  111.  146;  Sims  r.  Kickcts,  35  lud.  181 ;  Brook- 
bank  V.  Kennard,  41  Ind.  339 ;  Wilder  v.  Brooks,  10  Minn.  50 ;  Wells  v.  Wells,  35 
Miss.  638;  Shepard  v.  Shopard,  7  Johns.  Ch.  57 ;  Hunt  v.  Johnson,  44  N.  Y.  27  ;  Ma- 
sou  i>.  Libbey,  19  Hun,  119  (see  Joimson  v.  Kogers,  35  Hun,  267);  Miller  v.  Miller, 
17  Oreg.  423;  Garner  v.  Garner,  Busbee,  Eq.  1  ;  Crooks  v.  Crooks,  34  Ohio  St.  610; 
Penn.  Co.  v.  Neel,  54  Pa.  9;  Story  r.  Marshall,  24  Texas,  305;  Jones  v.  Obenchain,  10 
Grat.  259;  Sayers  v.  Wall,  26  Grat.  354;  McKenzie  v.  Ohio  Co.,  27  W.  Va.  306; 
Humphrey  v.  Spencer  (W.  Va.  1892),  14  S.  E.  ]{.  410;  Putnam  v.  Bickncll,  18  Wis. 
333;  Hannan  v.  Oxlcy,  23  Wis.  519;  Wheeler  Co.  v.  Monahan,  63  Wis.  198;  Kinney 
V.  Dexter  (Wis.  1892),  51  N.  W.  II.  82  Accord. 

Fowler  y.  Trebein,  16  Ohio  St.  493,497  Contra.  But  see  Crooks  v.' Crooks,  34 
Ohio  St.  610,  615. 

In  Adams  v.  Adams,  21  Wall.  185,  where  a  husband  signed,  and  had  recorded,  a 
deed  of  conveyance  of  real  estate  to  A.,  in  tru.^t  fur  his  wife,  Imt  the  deed  failed  to 
transfer  the  legal  estate  because  of  the  refusal  of  A.  to  become;  a  party  to  the  con. 
veyance,  it  was  held  that  an  irrovocahlo  trust  had  nevertheless  been  created  for 
the  wife. 

A  gratuitous  conveyance  by  a  wife  to  her  liusband  is  ineffectual,  both  at  law  and  in 
equity.  Kinnaman  i;.  Pyle,  44  Ind.  275;  White  v.  W.iger,  25  N.  Y.  328;  Winaus  v. 
Peebles,  32  N.  Y.  423 ;  Blaesi  v.  Blaesi,  14  N.  Y.  Civ.  Pr.  216.  (See  Ihuit  v.  Johnson, 
44  N.  Y.  27,  35-37 ;  Townshend  v.  Towushcud,  1  Abb.  N.  C.  81. J  But  sec  Porter  v. 
Wakefield,  146  Mass  25,  27.  — Ed. 


172  IN  RE  bueton's  estate.  [ciiat*.  l 

estate  and  the  investments  during  her  life,  and  after  her  death,  as  to 
the  s:\nio  residuary  estate  and  the  income,  upon  trust  for  his  six  nieces 
in  equal  shares. 

The  testator  had  no  real  estate  not  specifically  devised,  but  his  per- 
sonal estate  not  specifically  bequeathed  was  of  the  value  of  about 
£•22,000. 

The  testator  intermarried  with  the  plaintiflf  in  January,  1868.  At 
that  time  she  was  possessed  of  certain  articles  of  jewelry  of  her  own, 
and  on  the  occasion  of  the  marriage,  and  subsequently,  her  husband 
gave  her  many  other  articles  of  jewelry ;  and  all  these  articles  she 
always  retained  and  had  sole  possession  and  used  and  wore  as  she 
pleased. 

The  testator  having  previously  purchased  some  furniture,  on  the  22d 
of  April,  1868,  wrote  and  handed  to  his  wife  the  following  paper :  — 

"  This  is  to  certify  that  there  being  now  at  Messrs.  Maple  &  Co., 
145  Tottenham  Court  Road,  one  hundred  pounds  worth  of  furniture 
belonging  to  me,  I  give  the  same  to  my  dear  wife  Agnes  A.  Breton, 
absolutely  and  unreservedly,  for  her  own  use  and  benefit. 

"  Haxell's  Hotel,  Strand,  Loudon,  Fredk.  Breton, 

April  22d,  1868.  Major  Rl.  Wilts  Militia." 

The  testator,  having  purchased  some  plate  and  plated  articles,  wrote 
to  the  plaintiff  thus  :  — 

"  London,  June  1st,  1868. 
"  My  dearest  Wife,  —  I  this  day  make  you  a  present  of  the  plate,  &c., 
now  at  Mappin  and  Webb's,  and  which  they  are  taking  care  of  for  me, 
for  your  sole  use  and  benefit.     The  sum  I  paid  for  it  is  £59  7s.  lOd. 

"  Ever  yr  affecte  husband, 

"  Fredk.  Breton." 

The  testator  and  his  wife  subsequently  hired  a  house  at  Forest 
Hill,  where  they  went  to  reside,  and  thereupon  the  furniture,  plate, 
and  plated  articles  were  removed  thither.  Other  furniture  and  house- 
hold goods  purchased  by  or  belonging  to  the  testator  were  placed  in 
the  same  house,  and  on  the  18th  of  June,  1868,  he  wrote  and  handed 
the  following  to  the  plaintiff  :  — 

"  My  dearest  Wife,  —  Having  previously  made  over  to  you  for  your 
sole  use  and  benefit  a  certain  amount  of  furniture,  plate,  «&c.,  I  now 
present  you  with  everything,  furniture,  linen,  &c.,  plate,  china,  and 
glass,  and  all  jewelry  now  belonging  to  me  at  No.  1  Dulwich  Villas, 
Devonshire  Road,  Forest  Hill.  All  this  to  be  yours  and  yours  only 
from  this  date,  June  eighteenth,  1868.     This  gift  from 

"  Yr  ever  affecte  husband, 

"Fredk.  Breton." 

The  testator  and  his  wife  subsequently  went  to  reside  in  a  house  in 
the  Belvedere  Road,  where  they  lived  at  the  time  of  his  death.     To  that 


SECT.  VII.]  IN   EE  BRETON'S   ESTATE.  173 

house  all  the  furniture,  plate,  and  plated  and  other  articles  and  goods 
were  taken  from  the  house  at  Forest  Hill.  "While  the  testator  and  his 
wife  resided  together  at  the  two  houses,  the  articles  mentioned  were 
used  in  the  ordinary  wa}^  and  from  time  to  time  various  additions 
were  made  thereto  l)y  the  testator ;  but  during  his  life  he  always,  as 
alleged,  spoke  of  all  the  furniture  and  other  articles  and  goods,  and 
the  said  additions  thereto,  as  being  the  sole  property  of  his  wife,  and 
often  referred  to  the  useful  provision  for  her  comfort  which  she  would 
have  therein  and  by  means  thereof  after  his  death. 

The  trustees  and  executors  having  insisted  that  all  the  said  jewelry, 
furniture,  plate,  and  plated  and  other  articles  and  goods,  and  the  said 
additions  thereto,  formed  part  of  the  testator's  estate,  the  widow 
brought  this  action  to  have  it  ascertained  and  declared  whether  the 
same,  or  any  and  which  of  them,  or  any  and  what  parts  thereof, 
belonged  to  her  or  formed  part  of  the  testator's  estate  ;  and  if  neces- 
sary an  administration  of  the  trusts  by  the  Court. 

At  the  hearing,  the  executors  did  not  claim  the  articles  of  jewelry. 
W.  Pearson^  Q.  C,  and  Menskaw,  for  the  plaintiff.^ 
Cozens-Hardy,  for  the  defendants,  the  trustees,  and 
Hastings,  Q.  C,  and  //.  Greenwood,  for  the  defendant,  the  niece, 
were  not  called  upon. 

Hall,  V.  C.  I  am  unable  to  support  this  gift  to  the  plaintiff,  the 
wife,  as  a  trust  declared  by  her  husband  in  her  favor.  I  am  very 
sorry  for  it,  because  it  is  a  monstrous  state  of  the  law  which  prevents 
effect  being  given  to  such  a  gift.  I  think  that  the  dilliculty  in  the 
case  is  occasioned  by  two  or  three  of  the  decisions  which  have  been 
referred  to,  and  which  seem  to  favor  the  contention  that  these  paper 
writings  can  be  supported  as  a  declaration  of  trust  by  the  husband  in 
favor  of  his  wife.  It  was  suJ)mitted  that  the  husband  must  be  taken 
to  liave  intended,  knowing  wliat  the  law  is,  to  constitute  himself  a 
trustee  for  her,  that  being  the  only  way  of  giving  effect  to  the  paper 
writings,  i.  e.,  as  other  trustees  were  not  appointed,  he  must  be  held 
to  have  constituted  himself  a  trustee.  That  argument  ai)pears  to  me 
to  come  to  this,  that  in  every  case  of  an  imperfect  gift  on  the  part  of 
the  alleged  donor,  if  the  gift  be  not  effectual  by  reason  of  an  incom- 
plete transfer  of  the  property  from  the  alleged  donor  to  the  intended 
donee,  or  to  some  person  who  is  to  bo  a  trustee  foi'  the  intended  donee, 
the  Court  must  give  effect  to  the  donation  by  holding  that  the  alleged 
donor  was  a  trustee,  as  it  must  be  considered  that  he  knew  the  law, 
and  that  if  he  did  not  eflectiiate  his  o])ject  in  the  one  way  in  which  it 
would  have  been  valid,  it  must  be  done  in  another.  But  in  truth,  in 
the  one  case  as  well  as  in  the  other,  wlntlicr  a  wife  or  a  stranger  be 
the  object  of  the  gift,  it  is  manifest  from  the  transaction  taken  by 
itself  that  the  alleged  donor  was  mistaken  as  reg:irds  the  proper  and 
legal  mode  of  effectuating  that  which  he  intended  to  do.     It  is  plain 

1  Tbo  argument  fur  the  plaiutiff  is  omitted.  —  Ed. 


174  IN   KE  BRET0:S'S  ESTATE.  [CIIAP.  L 

that  the  husband  was  mistaken,  and  it  is  not  necessary  to  impute  to 
him  that  lie  meant  to  make  the  gift  in  an  ineffectual  way.  Looking  at 
the  documents,  they  are  a  contradiction  of  any  intention  on  his  part  to 
do  that. 

The  case  of  Grant  v.  Grant  ^  was  that  of  a  gift  to  a  wife,  and  if  the 
late  Master  of  the  Rolls  had  based  his  judgment  on  that  ground,  sup- 
])ortiug  it  as  being  a  special  and  peculiar  case,  and  creating  a  different 
law  as  applicable  to  husband  and  wife  in  every  case,  I  should  have 
nothing  more  to  do  than  to  follow  that  decision.  But  it  is  plain,  from 
the  reasons  given  for  the  decision,  that  it  was  meant  to  be  applicable 
to  every  other  case  of  the  kind,  and  not  merely  to  that  of  husband 
and  wife.  No  other  cases  of  a  gift  by  a  hus])and  to  his  wife  have 
been  referred  to  excepting  the  two  recent  decisions  of  Vice  Chancellor 
Malins  in  the  case  of  Baddeley  v.  Baddeley,  and  of  Vice  Chancellor 
Bacon  in  the  case  of  Fox  v.  Hawks.^  As  to  the  former  ease,  I  observe 
that  Vice  Chancellor  Malins  said  that  the  law  was  correctly  stated  in 
the  case  of  Grant  v.  Grant,  and  that  he  was  not  disposed  to  disagree 
with  the  judgments  in  Richardson  v.  Richardson,  and  in  Morgan  v. 
Malleson,  notwithstanding  the  remarks  of  the  Master  of  the  Rolls  in 
the  case  of  Richards  v.  Delbridge.  That  being  so,  there  is,  as  Vice 
Chancellor  Malins  seems  to  have  meant  there  should  be,  a  clear  dif- 
ference of  opinion  between  himself  and  the  Master  of  the  Rolls  upon 
this  question,  because  he  adopted  the  decisions  in  the  two  cases  of 
Richardson  v.  Richardson  and  Morgan  v.  Malleson,  —  decisions  which 
the  Master  of  the  Rolls  would  not  follow.  That  being  so,  I  must 
look  at  all  the  authorities  and  endeavor  to  find  a  correct  statement  of 
the  law  on  the  subject.  I  consider  that  the  principal  authority  in  these 
cases  is  that  of  the  case  of  Milroy  v.  Lord,  where  there  is  a  very  clear 
and  elaborate  statement  of  the  law  by  the  late  Lord  Justice  Turner. 
A  portion  of  the  judgment  of  the  Lord  Justice  was  quoted  by  the 
Master  of  the  Rolls  in  Richards  v.  Delbridge,  and  there  is  much  in  it 
which  is,  I  think,  applicable  to  this  case.  The  Lord  Justice,  after 
stating  that  under  the  circumstances  of  the  case  before  him  it  would 
be  difficult  not  to  feel  a  strong  disposition  to  give  effect  to  the  settle- 
ment to  the  fullest  extent,  said,  "  But  in  order  to  render  the  settlement 
binding,  one  or  other  of  these  modes  "  —  i.  e.  transfer  of  the  property 
or  declaration  of  trust  —  "  must,  as  I  understand  the  law  of  this  Court, 
be  resorted  to,  for  there  is  no  equity  in  this  Court  to  perfect  an  imper- 
fect gift."  What  I  am  asked  to  do  in  this  case  is  to  read  that  sentence 
as  having  introduced  mto  it  the  words,  "  except  as  to  a  gift  from  hus- 
band to  wife."  The  Lord  Justice  Turner  also  sard,  "  The  cases,  I 
think,  go  further  to  this  extent,  that  if  the  settlement  is  intended  to  be 
effectuated  by  one  of  the  modes  to  which  I  have  referred,  the  Court 
will  not  give  effect  to  it  by  applying  another  of  those  modes."  To 
give  effect  to  this  gift  I  must  introduce  the  words,  "  except  in  the  case 

1  34  Beav.  623.  2  13  Ch.  D.  822. 


SECT.  VII.]  IN  KE  BKETON'S   ESTATE.  175 

of  a  -wife."  The  Lord  Justice  proceeded  to  say,  "If  it  is  intended  to 
take  eflfect  by  transfer,  the  Court  will  not  hold  the  intended  transfer 
to  operate  as  a  declaration  of  trust,  for  then  every  imperfect  instru- 
ment would  be  made  effectual  by  being  converted  into  a  perfect 
trust"  ;  and  he  added  that  it  must  be  plainly  shown  that  it  was  the 
purpose  of  the  settlement,  or  the  intention  of  the  settlor,  to  constitute 
himself  a  trustee.  It  is  clear  in  this  case  that  it  was  not  so  intended. 
It  was  not  the  purpose  or  meaning  of  the  husband  in  writing  these 
letters  to  constitute  himself  a  trustee  for  his  wife.  I  can  well  under- 
stand in  such  a  case  a  husband  saying  to  his  wife,  "  I  mean  to  give 
you  this  as  your  own,  but  when  you  ask  me  to  be  a  trustee  for  you  I 
must  respectfully  decline.  I  do  not  want  to  be  involved  in  a  trust  of 
that  kind  or  in  any  trust."  Therefore  it  appears  to  me  that,  notwith- 
standing the  decisions  of  Vice  Chancellor  Malins  and  Vice  Chancellor 
Bacon  in  the  two  cases  which  have  been  observed  upon,  —  and  here 
I  may  just  state  that  the  case  before  Vice  Chancellor  Bacon  of  Fox  v. 
Hawks  had  many  special  circumstances  in  it  which  are  not  unlikely  to 
have  influenced  his  mind  in  arriving  at  the  conclusion  to  which  he 
came,  —  I  must  hold  that  the  furniture,  plate,  and  other  particulars, 
excepting  the  jewelry,  do  not  belong  to  the  plaintiff,  but  form  part  of 
the  late  husband's  estate.^ 

1  Gore  V.  Knight,  2  Vern.  535,  n.  2  ;  IMoore  i'.  Moore,  18  Eq.  474  ;  Howes  v.  Pru- 
dential Co.,  49  L.  T.  Rep.  33;  Re  Whitaker,  21  Ch.  D.  657;  Hayes  v.  Alliance  Co., 
L.  R.  8  Ir.  149 ;  Dilts  v.  Stevenson,  17  N.  J.  Eq.  406  ;  "Wade  v.  Eisiier,  9  Rich.  Eq.  362 
(semhle)  Accord. 

Cowper's  Case,  3  Atk.  39,  46  (cited) ;  Grant  v.  Grant,  34  Beav.  623  ,  Walliiigs- 
ford  V.  Allen,  10  Pet.  583,  594  (semble) ;  Williams  v.  Maull,  20  Ala.  721  ;  Mollwain 
V.  Vaughan,  76  Ala.  489;  Rabitte  v.  Orr,  83  Ala.  185;  Eddins  v.  Buck,  23  Ark.  507, 
Demiug  v.  Williams,  26  Conn.  226  ;  Jennings  v.  Davis,  31  Conn.  134  {semble)  ;  Uudcr- 
hill  '•.  Morgan,  33  Conn.  105  ,  Wheeler  v.  Wheeler,  43  Conn.  ■f)03  ,  Long  v.  White,  5  J. 
J  Marsh.  226,  229  (si-mhlc)  ;  Thomas  v.  Ilarknes.s,  13  Bu.sh,  23;  Adams  i'.  Brackett,  5 
Met.  280,  285  (semhle)  ;  Whitten  i-'.  Whitten,  3  Cush.  191,  199  (semble),  (hut  see  Spel- 
man  >'.  Alhrich,  126  Mass.  113,)  Ratcliffo  v.  Dougherty,  24  Miss.  181  ;  Wells  c.  Tread- 
well,  28  Miss.  717,  Walker  v.  Walker,  25  Mo.  3(i7 ;  Welch  v.  Welch,  63  Mo.  57;  Mc- 
Coy 1-.  Hyatt,  80  Mo.  130;  Clark  v.  Clark,  86  Mo.  114;  Botts  v.  Gooch,  97  Mo.  88; 
Skillman  r.  Skillman,  2  Bca.><lcy,  403  (semble) ;  Neufvillo  i;.  Thomson,  3  Edw.  Ch.  92 
(semble);  Bahcock  v.  Hhler,  24  N.  Y.  623;  Kollcy  i'.  Campl.cll,  1  Koyes,  29;  Savage 
V.  O'Neill.  44  N.  Y.  298 ;  Rawson  v.  Pa.  Co.,  48  N.  Y.  212,  216;  Reed  v.  I{ced.  52  N.  Y. 
651  ;  Shuttlcworth  v  Winter,  55  N.  Y.  624  (semble) ;  Seymour  v.  Fellows,  77  N.  Y. 
170,  Pa.Hchan  <-,  Hall,  5  .Jones,  Eq.  (N.  Ca.)  108  (semble)]  (see  Warlick  v.  White,  86 
N.  Ca.  139);  Hulior  v.  Hul.er,  10  Oh.  371;  Sessions  f.  Trovitt,  39  Oh.  St.  2.59;  Mc- 
Kennan  v.  Phillips,  6  Whart.  571  ,  Hcrr's  Apfieal,  5  Watts  &  S.  494;  Leo  v.  Newell, 
107  Pa.  283,  Elms  v.  IIughoH,  3  Dcsaus.  155;  Powell  v.  Powell,  9  Hum.  477,482; 
Shfogog  ('.  Perkins,  4  I'.axt.  273  ;  McCampholl  v.  McCampliell,  2  Lea,  661  ;  Tcmplctoa 
V.  Brown,  86  Tenn.  .50;  Bradshaw  v.  Miiyticld,  18  Tc.\.  21  (semble);  Cardell  v.  Hydcr, 
35  Vt.  47 ;  Fisher  i^.  Williams,  56  Vt.  586 ,  Fox  v.  Jones,  1  W.  Va.  205  Contra. 

Comjiarc  McLean  i-.  Longlands.  5  Ves.  71  ;  Walter  )'.  Hodge,  2  Swanst.  92;  Ex 
varte  Wliiuluad,  14  Q.  B.  Div  419;  Trowbridge  i*.  Holden,  58  Me.  117;  Lane  v. 
Lane,  76  Me.  521  ;  Woodford  v.  Stephens,  51  Mo.  443  ;  Keniston  v.  Koniston,  56  Vt.  680. 

In  Massachn.sctts  .i  husband's  gift  of  pf-rsonalty  to  his  wife  is  revocable  by  him, 
but  not  by  his  executor.  Marshall  v.  Ja<iuith,  i:>4  IShiss.  138.  See  also  Manny  n 
Rixford,  44  111.  129. —Ed. 


176  STA.TUTE   OF  FRAUDS.  fCHAP.  L 


SECTION  VIII. 

The  Statute  of  Frauds. 

STATUTE  29  CHARLES  II.,  Chapter  3,  Sections  7,  8,  and  9. 

1676. 

[8  Statutes  at  Large,  406.] 

VII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  all  declarations  or 
creations  of  trusts  or  confidences  of  any  lands,  tenements,  or  heredita- 
ments, shall  be  manifested  and  proved  by  some  writing  signed  by  the 
party  who  is  by  law  enabled  to  declare  such  trust,  or  by  his  last  will  in 
writing,  or  else  they  shall  be  utterly  void  and  of  none  effect. 

VIII.  Provided  always,  That  where  any  conveyance  shall  be  made 
of  any  lands  or  tenements  by  which  a  trust  or  confidence  shall  or  may 
arise  or  result  by  the  implication  or  construction  of  law,  or  be  trans- 
ferred or  extinguished  by  an  act  or  operation  of  law,  then  and  in  every 
such  case  such  trust  or  confidence  shall  be  of  the  like  force  and  effect 
as  the  same  would  have  been  if  this  statute  had  not  been  made ;  any- 
thing hereinbefore  contained  to  the  contrary  notwithstanding. 

IX.  And  be  it  further  enacted,  That  all  grants  and  assignments  of 
any  trust  or  confidence  shall  likewise  be  in  writing,  signed  by  the  party 
granting  or  assigning  the  same,  or  by  such  last  will  or  devise,  or  else 
shall  likewise  be  wholly  void  and  of  none  eflfect.^  - 

1  American  Statutes. — The  seventh  section  of  the  English  Statute  of  Frauds 
has  been  adopted  with  substantially  the  same  phraseology  in 

Arkansas.  —  Ark.  Dig.  (1884),  §  3382. 

Florida.  —  Fla.  Dig.  (1881),  c.  32,  §  2. 

Illinois.— 111.  Rev.  St.  (1887),  p.  742,  §  9. 

Maryland.  — Alex.  Br.  St.  (1870),  p.  546. 

Missouri. —Mo.  Rev.  St.  (1879),  §  2511. 

New  Jersey.  — N.J.  Rev.  St.  (1877),  p.  445,  §  3. 

Pennsylvania.  —  1  Br.  &  Purd.  Dig.  (1883),  p.  831,  §  3. 

South  Carolina.  —S.  Ca.  Gen.  St.  (1882),  §  1961. 
In  the  following  States  trusts  of  land  must  be  "  created  or  declared  "  in  writing : 

California.  —Cal.  Civ.  Code  (1885),  §  852. 

Dakota. —  Dak.  Comp.  L.  (1887),  §  2795. 

Georgia.- Ga.  Code  (1882),  §  2310. 

Maine.  — Me.  Rev.  St.  (1883),  c.  73,  §  11. 

Ma.ssachusetts.  —  Mass.  Pub.  St.  (1882),  c.  141,  §  1. 

New  Hampshire.  — N.  H.  Gen.  L.  (1878),  c.  135,  §  13. 

Vermont.  —  Vt.  Rev.  L.  (1880),  §  19.33. 
In  others  such  trusts  must  be  "  created  or  declared  by  deed  or  conveyance  in 
writing,"  e.  g. :  '"^ 

Colorado.  —Colo.  Gen.  St.  (1883),  §  1515. 


SECT.  VIII.]  STATUTE   OF   FRAUDS.  177 

Michigan.  —  2  How.  An.  St.  (1882),  §  6179. 
Minnesota.  —  Minn.  St.  (1878),  c.  41,  §  10. 
Montana.— Mont.  Comp.  St.  (1887),  §  217,  p.  651. 
Nebraska.  —  Neb.  Comp.  St.  (1881),  c.  32,  §  3. 
Nevada.  — Nev.  Gen.  St.  (1885),  §  2624. 
New  York.  —  4  N.  Y.  Rev.  St.  (1889),  2589. 
Oregon.  —  Hill's  An.  Laws  (1687),  593,  594. 
Or  bv  "  deed  or  instrument  in  writing  "  : 
Idaho.  — Id.  Rev.  St.  (1S87),  §  6007. 
Utah.  — Ut.  Comp.  L.  (1888),  §  3916. 

Wisconsin.  —  Sanborn  and  Berryman,  Annot.  St.  (1889),  §  2302. 
In  two  States  the  statute  provides  that  trusts  shall  be  "  created  "  in  writing,  viz. : 
Alabama.— Ala.  Code  (1886),  §  1845. 
Indiana.  —  Ind.  Rev.  St.  (1881),  §  2969. 
In  Maine,  at  one  time,  trusts  must  be  "created  and  declared."    Me.  Rev.  St.  (1841), 
c.  91,  §  31. 

In  two  others  "  declarations  or  creations  of  trusts  .  .  .  must  be  executed  in  the 
same  manner  as,  deeds  of  conveyance,"  viz. : 

Iowa.  —  McClaiu's  AlTCode  (1888),  §  3185. 
Kansas.—  Kas.  Comp.  L.  (1885),  §  1092.     See  also  §  6042,  1. 
In  one  State  trusts  must  be  "  made  and  manifested  by  writing,"  and  the  writing 
must  be  "  acknowledged  and  proved  as  other  writings,"  must  be  recorded,  and  takes 
effect  only  from  the  time  it  is  lodged  for  record,  viz. : 
Mississippi.  —  Rev.  Code  Miss.  (1880),  §  1296. 
In  the  following  States  and  Territories  there  is  no  statute  making  a  writing  essen- 
tial tu  the  validity  of  a  trust : 

Arizona.  Rhode  Island. 

Connecticut.  Tennessee. 

Delaware.  Texas. 

Kentucky.  ^  Virginia. 

New  Mexico.  West  Virginia. 

North  Carolina.  Wyoming. 

Ohio. 
In  these  States,  therefore,  there  would  seem  to  be  no  objection  to  oral  trusts  of 
land.  This  view  has  been  adopted  in  most  of  them.  Hall  v.  Livingston,  3  Del.  Ch. 
348;  Pierson  u.  Pierson,  5  Del.  Ch.  11  ;  Miller  v.  Stokely,  5  Oh.  St.  197  ;  Mathews  v. 
Leaman,  24  Oh.  St.  615  ;  Harvey  v.  Gardner,  41  Oh.  St.  642  ;  Haywood  ;;.  Ensley,  8 
Humph.  460;  James  v.  Fulcrod,  5  Tex.  512;  Mead  v.  Randolph,  8  Tex.  191,  198; 
Fretelliero  v.  Hiixlos,  57  Tex.  392;  U.  S.  Bank  v.  Carriugton,  7  Leigh,  576  (se.nbJe)  ; 
Walraven  v.  Locke,  2  Pat.  &  II.  547,  552  (semhle).  (But  see  Sprinkle  v.  Ileyworth, 
26  Grat.  384,  392  ;  Borst  v.  Nallo,  28  Grat.  423,  436.)  A  similar  view  prevailed  in 
Miri.si.'isippi  and  Ponn.sylvania  before  there  wxs  any  statutory  requisite  of  writing  iu 
the  ca.se  of  tru.sts.  .Sot:gins  v.  Hoard,  31  Miss.  426,  429;  Hubert  c  Murjihy,  7  Barr, 
420;  Freeman  v.  Freeman,  2  Pars.  Eq.  81;  Lingenfelter  v.  Ritdiey,  58  Pa.  485 
(explaining  Porter  v.  Mayfiold.  21  Pa.  263)  ;  Mea.^on  v.  Kaino,  63  Pa.  335,  339. 

In  Connecticut  and  Fvcntucky,  however,  the  courts  have  held,  but  upon  rea.soning 
that  will  not  boar  examination,  that  a  writing  is  essenti.nl  to  the  validity  of  a  trust  oi 
land  although  not  required  by  .any  statute.  Dean  v.  De.an,  6  Conn.  285  ;  Ciiurcb  r. 
Sterling,  10  Conn.  3KH,  401  ;  Vail's  Ap  ,37  Conn.  185,  198  ;  Todd  v.  Munson,  53  Conn. 
579;  Chiles  v.  WoolHr)n,  2  Bil.b,  71  ;  Parker  v.  Bodicy,  4  Bibb,  102;  CJravcs  v.  Diigau, 
6  Dana.  331,  .332;  Ayntisworth  v.  Haidcnian,  2  Duv.  565,  5G9-570. 

In  North  Carolina  a  trust  created  afu-r  the  analogy  of  a  feoffment  to  uses  is  valid 
though  oral.  Shflton  v.  Siieiton,  5  .lonos,  Kq.  292;  Biggs  v.  Swan,  6  .Jones,  I''<|.  118; 
Leggett  r.  Lcggett,  88  N.  Ca.  108.  But  a  trust  folii»wing  the  analogy  of  a  bargain 
aud  sale,  or  covenant  to  stand  seised,  can  arise  only  by  deed.  Frey  v.  Ramsour,  66 
N.  Ca.  460  ;  I'ittinan  c  I'lttrn-nn,  107  N.  Ca.  159. 

In  West  Virginia  a  uiii.i>Jo  distinction  is  taken.  An  oral  trust  is  valid  if  in  favor 
of  a  third  person,  but  invalid  if  in  favor  of  the  grantor.     Ilardman  v.  Orr,  5  W.  Vai 

12 


173  STATUTE   OF  FRAUDS.  [CTIAP.  L 

71  ;  Ncase  r.  Capchfirt,  8  W.  V.-v.  <)r),  109  ;  Tr.^ll  v.  Carter,  15  W.  Va.  567,  578 ;  Zaiie  !-. 
Fink,  IS  W.  Va.  G'j;3,  755;  Tusey  c  Ganlnor,  21  W.  Va.  4G9 ;  Cain  v.  Cox,  23  W.  Va. 
594  ;  Titclieuell  v.  Jackson,  26  W.  Va.  460. 

What  is  a  Sufficient  Comi-liance  with  the  Statute.  — In  jurisdictions 
■where  by  the  terms  of  the  statute  a  trust  need  not  be  created,  but  must  be  "mani- 
fested and  proved  "  by  a  writing,  a  subsequent  admission  in  writing  by  the  party  to  be 
diarjred  is  as  effectual  as  the  ex])rcssiou  of  a  trust  iu  the  instrument  of  its  creation. 
And  this  admission,  like  any  other,  may  bo  contained  in  almost  any  conceivable  docu- 
ment, as  a  letter,  pamphlet,  petition,  answer,  deposition,  receipt,  contract,  or  the  like. 
Smith  V.  Wilkiusou,  3  Ves.  Jr.  705,  cited;  Forster  v.  Hale,  3  Ves.  Jr.  096,  707,  5  Ves. 
308,  315;  Kaud.all  v.  Morgan,  12  Ves.  67,  73-74;  Dale  v.  Hamilton,  2  l^liill.  266,  275; 
Smith  r.  Matthews,  3  I).  F.  &  J.  139,  151 ;  Pant  Mawr  Co.  v.  F'leming  (Court  of  Ses- 
sion, 1883),  10  H.  457  ;  Robson  v.  Harwell,  6  Ga.  589,  604;  McLaurie  v.  Partlow,  53 
111.  340;  Kingsbury  v.  Burnside,  58  111.  310;  Phillips  v.  South  Park  Commissioners, 
119  111.  626,  640;  Aynesworth  v.  Ilaldeman,  2  Uuv.  565,  569  ;  Bragg  v.  Paulk,  42  Me. 
502;  Bates  v.  Hurd,  65  Me.  180;  McClellan  v.  McClelian,  65  Me.  500;  Maccubbin  v. 
Cromwell,  7  Gill  &  J.  157;  Albert  v.  Winn,  5  Md.  66,  73;  Gordon  v.  McCulloh,  66 
Md.  245;  Earrell  v.  Joy,  16  Mass.  221  ;  Safford  v.  Rantoul,  12  Pick.  232;  Montague 
V.  Hayes,  10  Gray,  609;  Urann  i-.  Coates,  109  Mass.  581  ;  Cornelius  v.  Smith,  55  Mo 
528  ;  Packard  v.  I'utnam,  57  N.  H.  42 ;  Hutchinson  v.  Tindal,  2  Green,  Ch.  357  ;  Smith 
V.  Howell,  3  Stockt.  349 ;  Brown  v.  Combs,  5  Dutch.  36 ;  McVay  v.  McVay,  43  N.  J. 
Eq.  47  ;  Xewkirk  v.  Place,  47  N.  J.  Eq.  477  ;  Movan  v.  Hays,  1  Johns.  Ch.  339,  342  ; 
Steere  v.  Steere,  5  Johns.  Ch.  1,  12 ;  Gomez  v.  Traders'  Bank,  4  Sandf.  102 ;  Cook  v. 
Barr,  44  N.  Y.  156;  Kutledge  v.  Smith,  1  McC.  Ch.  119;  Reid  v.  Reid,  12  Rich.  Eq. 
213  ;  Mathews  v.  Masse}',  4  Baxt.  450;  Piuuey  v.  Fellows,  15  Vt.  525,  539  ;  McCaud- 
less  V.  Warner,  26  W.  Va.  754 ;  Pratt  v.  Ayer,  3  Chand.  265. 

Statutes  requiring  trusts  to  be  "  created  or  declared  "  in  writing  have  received  a 
similar  interpretation.  Jenkins  v.  Eldredge,  3  Story,  294  (semble) ;  Bates  v.  Hurd,  65 
Me.  180 ;  McClellan  v.  McClellan,  65  Me.  500 ;  Urann  v.  Coate.s,  109  Mass.  581 .  Even 
when  the  trust  must  be  "  created  or  declared  by  deed  or  conveyance  iu  writing,"  the 
deed  or  conveyance  may  be  subsequent  to  the  creation  of  the  oral  trust.  Sime  v. 
Howard,  4  Nev.  473  ;  Wright  v.  Douglass,  7  N.  Y.  564  (see,  liowevcr.  Cook  v.  Barr,  44 
N.  Y.  156,  159j;  White  v.  Fitzgerald,  19  Wis.  480.  Compare  Loring  v.  Palmer,  118 
U.  S.  321,  339. 

If  the  statute  requires  the  trust  to  be  "created"  or  "created  mid  declared"  in 
writing,  a  subsequent  memorandum  would  seem  to  be  insufficient.  The  court  so  de- 
cided in  Richardson  v.  Woodbury,  43  Me.  206,  212,  interpreting  Me.  Rev.  St.  (1841), 
c.  91,  §  31,  now  repealed.  But  see,  contra,  Gaylord  v.  Lafayette,  115  Ind.  423,  428. 
The  question  was  expressly  left  open  in  Patton  v.  Beecher,  62  Ala.  579,  587. 

Inasmuch  as  a  subsequent  memorandum  operates  as  an  admission,  the  intention  of 
the  party  making  it  is  immaterial.  Welford  v.  Beazely,  3  Atk.  503 ;  Bates  r.  Hurd, 
65  Me.  180;  Hutchinson  v.  Tindal,  2  Green,  Ch.  357,  3G2 ;  Browne,  St.  Frauds  (4th 
ed),  §  99.  It  is  conceived,  indeed,  that  the  memorandum,  if  otherwise  complete, 
would  be  a  sufficient  compliance  with  the  statute,  even  though  it  contained  an  express 
repudiation  by  the  trustee  of  his  liability.  See  Langdell,  Sales,  Index,  ^  72  ;  Bailey  v. 
Sweeting,  9  C.  B.  n.  s.  843  ;  Buxton  v.  Rust,  L.  R.  7  Ex.  279.  Tiiere  is,  however,  one 
exception  to  this  proposition.  A  defendant  who  in  his  answer  to  a  bill  in  equity 
admits  an  oral  trust  may  nevertheless  claim  the  benefit  of  the  statute  as  a  bar  to  the 
relief  sought.  Dean  v.  Dean,  1  Stockt.  425  {semble) ;  Whiting  v.  Gould,  2  Wis.  552 
{semble).  If,  on  the  other  hand,  the  defendant  does  not  rely  on  the  Statute  of  F'rauda 
in  his  answer,  and  the  answer  discloses  the  terms  of  the  trust,  the  plaintiff  will  be 
entitled  to  a  decree  for  the  execution  of  the  trust ;  McLaurie  v.  Parker,  53  III.  340 ; 
McCubbin  V.  Powell,  7  Gill  &  J.  157;  the  section  of  the  statute  relating  to  tru.sts 
differing  from  that  relating  to  the  sale  of  goods,  the  memorandum  of  which  must 
exist  before  action  brought.     Langdell,  Sales,  Index,  1  72. 

Antecedent  Writiwj.  — A  writing  antecedent  to  the  creation  of  a  trust  cannot  operate 
as  an  admission,  which  must,  of  course,  relate  to  a  contemporaneous  or  pre-existing 
fact.    But  such  a  writing  may  be  an  offer  to  act  as  trustee,  which  upon  acceptance  be* 


SECT.  YIIL]  GAEDNER   V.   EOWE.  179 


GARDNER  v.   ROTTE. 

In  Chancery,  before  Sir  John  Leach,  V.  C,  Mat  9,  June  19, 

July  5,  1825. 


[Reported  in  2  Simon  Sc  Stuart,  346.] 


The  Vice  Chancellor.^  On  the  1st  of  January,  1812,  the  Earl  of 
Mount  Edgecumbe,  by  indenture  of  that  date,  granted  to  the  bankrupt 
George  Wilkinson  the  lease  or  set  of  a  certain  mine,  called  the  Wheal 
Regent  Mine,  for  a  term  of  twenty-one  years,  for  the  considerations 
therein  mentioned  ;  and,  by  an  indenture  bearing  date  the  23d  August, 
1813^  the  bankrupt  George  Wilkinson,  who,  at  the  request  of  Rowe, 
had  previously  assigned  five  fourteenths  to  one  Brodrick,  after  reciting 
that  his  name  was  used  in  the  said  indenture  of  the  1st  January,  1812, 
as  a  trustee  for  Joshua  Rowe,  assigned  and  transferred  the  remaining 
fifty-nine  parts  or  shares  to  the  said  J.  Rowe,  for  the  residue  of  the 

comes  a  written  obligation  so  to  act,  and  as  snch  is  a  compliance  with  the  statute. 
Bellamy  v.  Burrows,  C.  t.  Talbot,  97 ;  Mocton  v.  Tcwart,  2  Y.  &  C.  Ch.  67.  See  also 
Jackson  v.  Moore,  6  Cow.  706,  726.  It  was  intimated  in  Childers  v.  Childers,  1  DeG. 
&  J.  482,  that  a  letter  written  by  a  grantor  antecedent  to  a  deed  of  conveyance,  snd 
not  referred  to  in  the  deed,  might  be  a  sufficient  writing  to  satisf}'  the  statute.  But 
this  opinion  seems  erroneous.     The  case  itself  was  rightly  decided  on  other  grounds. 

Hkqlisites  of  the  Writing.  —  The  writing  must  contain  all  the  terms  of  the 
trust.  Smith  i-.  Matthews,  3  D.,  F.  &  J.  13'J;  Loring  v.  Palmer,  118  U.  S.  321  ;  Gay- 
lord  V.  Lafayette,  115  Ind.  423, 429  ;  McClellan  v.  McClellan,  65  Me.  500,  506  {semble) ; 
Blodgett  V.  ilildreth,  103  Mass.  484,  486  ;  York  v.  Perrine,  71  Mich.  567  ;  Newkirk  v. 
Place.  47  N.  J.  Eq.  477,  486  ;  Steere  v.  Steere,  5  Johns.  Ch.  1  ;  Cook  v.  Barr,44  N.  Y. 
156;  Dillaye  v.  Greenough,  45  N.  Y.  438  (semble);  Dyer's  Appeal,  107  Pa.  446;  Mc- 
Candless  v.  Warner,  2*  W.  Va.  754,  780. 

But  see,  contni,  the  language  of  the  court  in  Kingsbury  v.  Burnside,  58  111.  310; 
Fast  V.  MePherson,  98  111.  496.  But  the  facts  in  each  of  these  cases  disclose  a  trust 
arii+ing  })y  o])oralion  of  law. 

The  tcnn.s  of  tlie  tru-^t  need  not  be  contained  in  one  document, but  maybe  collected 
from  several  papers,  if  connected  either  i)liysi(:illy  or  by  reference  of  one  to  another,  or 
if  on  their  fare  referring  to  the  same  tran.Haction.  Kronhcim  v.  Johnson,  7  Ch.  D.  60; 
Loring  V.  Palmer,  UK  U.  S.  321  ;  Tenncy  r.  Simpson,  37  K.as.  579.  Indeed,  by  some 
modern  ca-xcH  the  connection  between  separate  papers  may  be  shown  l)y  parol  evidence. 
Oliver  v.  Hunting,  44  Ch.  1).  205. 

Si;/nntiire  or  Subscription.  — The  writing  must  bo  signed  ;  it  need  not  be  subscribed. 
Morison  »».  TiiriK)nr,  18  Vos.  175  {smilih)  ;  Kronhr'im  i;.  Johnson,  7  Ch.  I).  60,  67  ; 
Smith  V.  Ilowtil,  3  Stockt.  349  ;  Ncwkirk  v.  Pi.ico,  47  N.  J.  Ecj.  477,  486.  Except  in 
jurisdictions  where  the  statute  in  terms  reqniies  the  writing  to  bo  sulmcribcd,  as  iu 
California,  Civ.  Code  (1«85),  §  852  ;  Colorado,  Ccn.  St.  (1883),  §  1515  ;  Dakota,  Comp. 
L.  (1887),  §  2795;  Mabo,  ]U;v.  St.  (1KH7),  §  fi()(i7  ;  Michigan,  2  How.  An.  St.  (1882), 
§6179;  Minnesota,  St.  (1878),  c.  41,  tit.  2,  f.  10;  Montana,  Comp.  St.  (1887),  §  217, 
p.  651;  Nebnuxka,  C.  S.  (1887),  c.  32,  §  3;  Nevada,  Gen.  St.  (1885),  §  2624;  New 
York,  4  N.  Y.  Rev.  St.  (1889),  2589  ;  Oregon,  Hill's  An.  Laws  (1887),  593,  .594 ;  Utah, 
Comp.  L.  (1888),  §  3916  ;  Wisconsin,  S.  &  B.  An.  St.  (1889),  §  2.302.  — Ed. 

1  See  supra,  p.  70,  n.  1.  —  Eu. 


180  GARDNER  V.   ROWE.  fciIAP.  I. 

said  term.  It  is  admitted  that,  prior  to  this  assignment,  an  act  of 
bankruptcy  had  been  committed  by  the  said  George  Wilkinson,  and 
that  a  commission  of  bankrupt  was  duly  issued  against  him  in  the 
month  of  November,  1813  ;  and  the  present  bill  is  filed  by  the  assignees 
of  Wilkinson  under  that  commission  against  J.  Rowe  and  certain  other 
persons  claiming  interest  under  him  in  the  Wheal  Regent  Mine,  for  the 
purpose  of  having  it  declared  that  the  lease  of  the  Wheal  Regent  Mine 
is  the  property  of  the  bankrupt.  On  the  hearing  of  this  cause  the 
plaintiffs  contended  that  it  was  established,  by  the  evidence  in  the 
cause,  that,  at  the  time  of  the  grant  from  Lord  Mount  Edgecumbe,  it 
was  the  purpose  of  the  bankrupt  and  J.  Rowe  that  the  bankrupt  should 
hold  the  lease  for  his  own  benefit,  and  not  as  a  trustee  for  J.  Rowe  ; 
and  the  plaintiffs  further  contended,  as  a  point  of  law,  that  if  in  fact  it 
had  been  the  purpose  of  the  bankrupt  and  J.  Rowe,  at  the  time  of  the 
grant  from  Lord  Mount  Edgecumbe,  that  the  name  of  the  bankrupt 
should  be  used  as  a  trustee  for  J.  Rowe,  yet  that  such  trust  could  not 
prevail,  because  there  was  no  written  declaration  of  trust  within  the 
Statute  of  Frauds  other  than  the  indenture  of  24th  August,  1813,  which, 
being  executed  by  the  bankrupt  after  his  bankruptcy,  could  not  operate 
to  defeat  the  claim  of  his  assignees. 

It  appeared  to  me  at  the  hearing  that  I  could  not  properly  enter  upon 
the  consideration  of  this  point  of  law  without  first  coming  to  a  con- 
clusion upon  the  fact,  whether  the  name  of  the  bankrupt  was  or  not 
used  in  the  indenture  of  January,  1812,  as  a  ti-nstee  for  the  defendant 
J.  Rowe,  and  I  directed  an  issue  accordingly.  At  the  trial  of  this 
issue,  the  jury  found  that  the  name  of  the  bankrupt  was  used  as  a 
trustee  for  J.  Rowe  ;  and  a  motion  having  been  made  before  me  by  the 
plaintiffs  for  a  new  trial  of  that  issue,  I  refused  to  disturb  the  verdict. 

The  question  which  has  now  been  mainly  argued  before  me  is,  whether 
the  indenture  of  the  24th  August,  1813,  having  been  executed  by  the 
bankrupt  subsequent  to  his  bankruptcy,  can  or  not  be  received  as 
against  his  assignees  as  a  declaration  of  trust  in  writing.  Upon  a  con- 
sideration of  the  several  cases  which  have  been  referred  to  in  the  argu- 
ment,  it  does  not  appear  to  me  that  any  authority  has  been  produced 
which  is  directly  in  point.  All  the  cases  establish  that  a  bankrupt 
cannot,  by  any  act  subsequent  to  his  bankruptcy,  transfer  any  interest 
from  his  assignees.  Thus,  a  bankrupt  cannot  defeat  the  interest  of 
his  assignees  by  a  power  of  appointment.  Can  the  bankrupt  be  said 
to  have  any  interest  in  this  mine  at  the  time  of  his  bankruptcy?  He 
might  have  recovered  possession  of  this  mine  by  force  of  his  legal  title ;  ■ 
but  he  would  then  have  recovered,  not  in  respect  of  his  interest,  but 
by  converting  a  statute,  made  for  the  prevention  of  fraud,  into  an 
instrument  of  his  own  fraud.  It  is  not  disputed  that  this  deed  of 
August,  1813,  would  have  prevailed  against  the  assignees,  as  a  declara- 
tion of  trust,  if  it  had  been  executed  before  the  bankruptcy.  Yet  a 
mere  voluntary  deed,  executed  before  the  bankruptcy,  will  not  prevail 
against  the  assignees.     This  deed,  therefore,  in  respect  to  the  moral 


SECT.  VIII.]  GARDNER  V.   ROWE.  181 

obligation  on  the  trustee  to  give  effect  to  his  trust,  would  not,  in  such 
case,  have  been  considered  as  a  mere  voluntary  deed.  If,  in  respect  of 
the  moral  obligation  affecting  the  trustee,  this  declaration  of  trust  would 
have  prevailed  against  the  assignees  if  executed  the  day  before  the 
bankruptcy,  without  any  other  consideration,  I  cannot  find  a  principle 
why  it  should  not  prevail  against  the  assignees,  if  executed  the  daj' 
after  the  bankruptcy,  especially  when  it  is  considered  that  a  trust  does 
not  pass  by  assignment  in  the  bankruptcy.  For  these  reasons,  I  am 
of  opinion  that  the  indenture  of  24th  August,  1813,  though  executed 
after  the  bankruptcy,  is  a  good  declaration  of  trust  in  favor  of  J. 
Rowe,  within  the  vStatute  of  Frauds.  It  has  been  slightly  argued  that 
the  letters  of  the  bankrupt  do  manifest  a  trust  in  writing  within  the 
Statute  of  Frauds  ;  and,  further,  that  a  trust  in  this  case  is  to  be  im- 
plied from  the  fact  that  Rowe  actually  directed  the  working  of  the  mine, 
and  paid  the  expenses  of  it ;  but  I  do  not  think  it  necessary  to  give 
any  opinion  on  these  points.  The  bill  must  therefore  be  dismissed, 
and  witli  costs.^ 

1  Affirmed  in  5  Russ.  258.     Ambrose  v.  Ambrose,  1  P.  Wms.  321  ;  In  Re  Farmer/ 
18  N.  B.  K.  207,  216  {semble)  Accord. 

See  also  Smith  v.  Howell,  3  Stockt.  349. 

If  the  trustee  of  land  under  an  oral  trust,  in  recognition  of  his  moral  duty,  couA-eys 
to  the  cestui  f/ue  trust  or  to  his  appointee,  the  conveyance  cannot  be  impeached  by  the 
trustee's  creditors.  Gordon  v.  Tweedy,  71  Ala.  202;  Van  Dorn  v.  Leeper,  95  111.  35; 
P'irst  Bank  v.  Kurtz,  22  111.  Ap.  213  ;  Cox  v.  Arnemann,  76  Ind.  210  ;  Clark  v.  Rucker, 
7  B.  Mon.  583 ;  Brown  v.  Lunt,  37  Me.  423 ;  Pattou  v.  Chamberlain,  44  Mich.  5 ; 
Jamison  v.  Miller,  27  N.  J.  Eq.  586 ;  Siemon  v.  Scharck,  29  N.  Y.  598 ;  Dygert  t'. 
Remerschnider,  32  N.  Y.  629 ;  Foote  v.  Bryant,  47  N.  Y.  544 ;  Cramer  r.  Blood,  48 
N.  Y.  684  ;  Norton  v.  Mallory,  63  N.  Y.  434 ;  Robbins  i'.  Robbins,  89  N.  Y.  251,  257 ; 
Davis  V.  Graves,  29  Barb.  480 ;  Baldwin  i;.  Ryan,  3  Th.  &  C.  251 ;  Holden  v.  Burn- 
ham,  5  Th.  &  C.  195  ;  Burdick  v.  Jackson,  7  Ilun,  488  ;  Ocean  Bank  i'.  Hodges,  9  Hun, 
ICl  ;  Powell  V.  Ivey,  88  N.  Ca.  256;  Sackctt  v.  Spencer,  65  Pa.  89  (but  .see,  cuntra, 
O'Hara  v.  Dil worth,  72  Pa.  397) ;  Price  v.  Brown,  4  S.  Ca.  n.  s.  144  (semhU) ;  Hyde  v. 
Chapman,  .33  Wis.  391.  But  see,  contra,  Smith  i'.  Lane.  3  Pick.  205  ;  Holmes  v.  Win- 
chester, 135  Mass.  299.  (Compare,  however,  Bancroft  v.  Curtis,  108  Mass.  47,  and 
Bush  V.  Boutelle  [Massachusetts,  1892],  30  N.  E.  R.  607). 

In  Hays  v.  Hegon,  102  Ind.  524 ;  McVay  v.  McVay,  43  N.  J.  Eq.  47,  49  ;  I'inney  v. 
Fellows,  15  Vt.  525;  ami  Main  v.  Bosworth,  77  Wis.  C60,  the  conveyance  was  allowed 
to  .stand  although  made  after  the  creditor  of  the  trustee  had  obtained  a  judgment  lien 
npon  the  land.  But  see,  cmtra,  Connor  v.  Follansbee,  59  N.  H.  124  ;  Dewey  v.  Dewey, 
35  Vt.  555,  560  {sp.mUc) ;  Skinner  v.  James,  69  Wis.  605. 

An  riral  contnu-t  by  a  biuhelor  to  convey  land,  if  performed  after  his  marriage, 
deprives  his  wife  of  dower.     Olilham  v.  Sale,  1  1$.  M<>n.  76. 

A.  contracts  orally  to  convey  certain  land  to  B.  Ho  then  contracts  in  writing  to 
convey  the  same  land  to  C. ;  and  finally  convevH  to  B.,  who  has  notice  of  the  written 
contract  in  favor  of  C  B.  may  keep  tlir-  land.  Dawson  v.  Ellis,  1  J.  &  W.  524  (se.mhir)  ; 
Clarke  r.  Rucker,  7  B.  Mon.  .583,  585  {semble). 

A  judgment  against  the  cestui  ifw  trust  under  an  oral  trust  attaches  to  the  land 
Bubsequently  conveyed  to  him.     IJoyfl's  Apj).,  H2  I'a.  485. 

If  the  j)rinciy)al  rase  is  sound,  it  would  seem  to  follow  that  a  postnuptial  settlement 
in  fnlfilmcnt  of  an  f>ral  ante-nnpti.'il  atrrfemfut  to  settle  specific  property  in  considera- 
tion of  the  marriage,  must  be  effectual  agnin.st  the  settlor's  creditors.  And  there  is 
authority  for  this  j)osition.  Griffin  v.  Stanliope,  Cro.  Jac  454  ;  Bevy's  Cnno,  1  Vent. 
193  (sembk);  Lavender  v.  Black.stone,  2  Lev.  146,  147  (semble);  Montacutc  v.  Max- 


182  TIERXEY   V.   WOOD.  [CHAP.  I. 


TIERNEY  V.   WOOD. 
In  Chancery,  before  Sir  John  Romilly,  M.R.,  June  3,  G,  27,  1354. 

[Reported  in  19  ^eayan,  330.] 

In  January,  1836,  Alexander  Wood  purchased  a  house,  a  close  of 
laud,  and  premises,  situate  at  Little  Hampton,  iu  Sussex,  for  the  sura 
of  £490.  They  were  conveyed  to  the  plaintiff  Tierney  in  fee,  who 
admitted  he  held  them  in  trust  for  AVood. 

About  the  same  time,  Wood  transferred  a  sum  of  stock  into  the 
plaintiff's  name ;  but  by  his  direction  tlie  plaintiff  afterwards  sold  it 
out,  and  delivered  the  proceeds  of  the  sale  to  Wood. 

Soon  after  the  purchase  of  the  house,  land,  and  premises.  Wood 
delivered  to  the  plaintiff  a  paper  writing,  signed  by  him,  and  dated 
January,  1837,  in  these  words  :  "  I  hereby  desire'that,  after  my  death, 
the  stock  now  in  the  Bank  of  England,  with  the  house  and  land  now 
belonging  to  me  at  Little  Hampton,  shall  be  held  by  you,  as  you  at 
present  hold  it,  for  the  benefit  of  my  wife,  Elizabeth  Wood,  during  her 
life,  and  that  after  her  death  the  same  shall  continue  to  be  held  by  you 
as  aforesaid,  for  the  sole  benefit  of  my  daughter,  Mary  Wood,  in  such 
sort  that  it  shall  be  wholly  and  entirely  free  from  all  control  of  any 
person  with  whom  she  may  intermarry.  I  further  desire  that,  in  case 
my  said  daughter  Mary  should  leave  issue  by  any  marriage  which  she 
may  contract,  the  whole  of  the  above  property  shall  pass  to  such  issue, 
in  such  manner  as  she  may  direct ;  but  that,  in  case  she  should  die 
without  issue,  the  whole  of  the  above  property  shall  be  equally  divided 
among  the  lawful  issue  of  my  son  Alexander  Wood,  born  after  1834, 
he  to  have  the  interest  and  profits  arising  from  the  property  during  his 
life.     If  my  son  should  die  without  issue,  I  desire  that  all  the  property 

well,  1  Stra.  236,  per  Lord  Macclesfield;  Dundas  v.  Dutcns,  1  Ves.  Jr.  196,  2  Cox,  235, 
per  Lord  Thurlow  ;  Shaw  v.  Jakeman,  4  East,  201,  207,  per  Lord  Elleuborough ;  wSur- 
come  V.  Pinniger,  3  DeG.,  M.  &  G.  .571,  575,  per  L.  J.  Turner;  Hussey  v.  Castle,  41 
Cal.  239  ;  Satterthwaite  v.  Emley,  3  Green,  Ch.  489 ;  Hall  v.  Light,  2  Duv.  358. 

There  is,  however,  considerable  authority  to  the  contrary.  Spurgeon  v.  Collier,  1 
Eden,  55,  per  Lord  Northington ;  Kaudall  i-.  Morgan,  12  Ves.  67,  per  Sir  W.  Grant; 
Warden  v.  Jones,  2  DeG.  &  J.  76;  Trowell  v.  Shewton,  8  Ch.  l)iv.  318  {semtde); 
L'Estrange  v.  Kobiusou,  1  Hog.  202;  Lloyd  v.  Fulton,  91  U.  S.  479  {semhle) ;  Andrews 
1-.  Jones,  10  Ala.  421  (semble)  ;  Winn  v.  Albert,  5  Md.  66,  2  Md.  Ch.  169;  Wood  v. 
Savage,  2  Doug.  (Mich.)  316;  Manke  v.  Manke,  75  Mich.  435  {semhle);  Reade  v. 
Livingston,  3  Johns.  Ch.  481  {semble);  Borst  «.  Corey,  16  Barb.  136;  Izard  v.  Izard, 
Bail.  Eq.  228;  Davidson  ?;.  Graves,  Riley,  Eq.  219;  Smith  v.  Greer,  3  Humph.  118. 
The  case  of  Warden  v.  Jones,  supra,  was  decided  largely  on  the  strength  of  Sir  W. 
Grant's  dictum  in  Randall  v.  Morgan,  supra,  that  a  subsequent  memorandum  of  the 
prior  oral  ante-nuptial  agreement  would  not  satisfy  the  Statute  of  Frauds.  This  dic- 
tum has  been  explicitly  overruled.  Barkworth  v.  Young,  4  Drew.  1,12.  There  is  a 
vigorous  and  poiuted  criticism  of  Warden  v.  Jones  in  5  Jur.  n.  .s.  (Part  II.),  46.  Fur- 
thermore, that  case  is  hardly  to  be  reconciled  with  the  decision  iu  Ex  parte  Whitehead, 
14  Q.  B.  Div,  419.  — Ed. 


SECT.  VIII.]  TIERXEY   V.   WOOD.  183 

may  be  sold,  and  the  money  be  equally  divided  among  my  late  brother's 
children  now  living  at  Old  Craig,"  &c.  "  After  the  death  of  my  wife, 
I  wish  my  son  Alexander  to  be  paid  £100  in  money,  or  to  be  paid  £5 
a  year  during  his  life.  If  my  son  Alexander  and  my  daughter  Mary 
have  both  issue,  let  the  property  be  equally  divided  among  them ; 
if  they  have  no  issue,  give  ,£100  to  such  charity  as  Mr.  Jones's  at 
St.  Leonards.  Let  my  son  have  my  books  on  gardening,  my  shirts, 
or  any  of  my  clothes  that  may  be  of  use  to  him,  if  he  desu-e  to  have 
them. 

"  Alexander  Wood.     January,  1837. 
"To  the  Rev.  M.  A.  Tiernet." 

Alexander  "Wood,  the  elder,  died  in  1844,  intestate,  and  the  plaintiff 
allowed  Mrs.  "Wood,  his  widow,, to  receive  the  rents  of  the  premises, 
till  her  death  in  June,  1853. 

Alexander  Wood,  the  son  and  heir  at  law  of  Alexander  AVood  the 
elder,  and  Mary  Wood,  the  daughter,  were  living ;  but  the  latter  has 
never  been  married,  and  questions  having  arisen  as  to  the  rights  of  the 
parties  interested  in  the  property  of  Alexander  Wood  the  elder,  and 
as  to  the  effect  of  the  paper  writing,  the  plaintiff  instituted  the  suit  to 
obtain  the  opinion  of  the  court  thereon. 

J/r.  Eiddell,  for  the  plaintiff. 

3fr.  Nichols,  for  Alexander  Wood,  the  heir  at  law. 

Mr.  Flemiufj,  for  the  daughter  Mary. 

The  Master  of  the  Rolls  was  of  opinion  that  Mary  Wood  took 
an  estate  tail,  l)ut  reserved  his  judgment  as  to  the  validity  of  the 
declaration  of  trust. 

The  Master  of  the  Rolls.  The  question  is,  whether  the  document 
dated  in  January,  1837,  created  a  good  declaration  of  trust  within  the 
seventh  section  of  the  Statute  of  Frauds.  That  clause  is  in  these 
words,  or  to  this  effect :  That  after  the  24th  of  June,  1677,  all  declara- 
tion.s  or  creations  of  trusts,  or  confidences  of  anj'  lands,  tenements, 
or  hereditaments,  shall  Ije  mauife.st(;d  and  proved  by  some  wi'iting, 
signed  by  the  party  who  is  by  law  enabled  to  declare  such  trust,  or 
by  his  last  will  in  writing,  or  else  they  shall  be  utterly  void  and  of  none 
effect. 

The  first  question  raised  is,  wliotlier  Alexander  Wood  is  the  person 
who  is  by  law  enabled  to  declare  tlie  trusts  of  tliese  lands. 

The  second  (piestion  is,  wlietlier,  if  lie  be,  this  is  a  declaration  of 
trust,  and  such  a  one  as  can  be  acted  upon. 

There  is  no  question  Ijiit  that  on  tlic  purchase  of  this  property  by 
Alexander  Wo(j(1,  and  the  conveyance  tliereof  to  tlie  Rev.  M.  A.  Tier- 
ney,  a  resulting  trust  arose  in  favor  of  Ahixander  Wood,  which,  as  it  is 
expressly  excepted  by  the  eighth  section  of  the  Statute  of  Frauds,  does 
not  rcfjuire  to  be  evidenced  by  any  writing.  In  the  year  1S3(5,  there- 
fore, anil  ])revious  to  the  signing  oi  this  document,  the  property  in 
question  was  vested  in  M.  A.  Tierney,  in  fee,  in  trust  for  Alexander 


13-4  TIERNEY   V.   WOOD.  [CIIAP.  I. 

Wood,  in  fee  simple.  Alexander  "Wood,  therefore,  was  the  benefieial 
owner  of  this  i)roperty,  and  Mr.  Tierney  had  the  mere  naked  legal 
interest  in  it.  A  distinction  may  be  raised  between  the  person  who  is 
,  by  law  enabled  to  declare,  and  the  person  who  is  by  law  entitled  to 
create  the  trnst.  I  consider,  in  the  first  place,  who  was  by  law  entitled 
to  create  a  trnst  in  this  property  ;  and,  first,  I  examine  what,  in  such  a 
state  of  things,  would  have  been  the  effect  of  this  document,  so  far  as 
it  relates  to  the  stock,  which  had  been  transferred  into  the  name  of 
M.  A.  Tierney,  if  this  had  not  been  sold  out  afterwards  by  the  direc- 
tion of  Alexander  Wood,  and  the  direction  to  pay  the  dividends  had 
been  complied  with  by  Tierney.  The  result  would  have  been  that  the 
relation  of  trustee  and  cestui  que  trust  between  Tierney  and  the  person 
mentioned  in  the  instrument  would  have  been  completed,  so  far  as  that 
stock  was  concerned,  and  the  fact  that  the  document  had  been  a  volun- 
tary act  on  the  part  of  Wood  would  not  have  prevented  this  court  from 
acting  upon  it.  The  case  of  Ex  jittrte  Pye  and  Dubost,  and  the  author- 
ities referred  to  in  Bridge  v.  Bridge,^  decided  by  myself,  establish  this 
proposition.  Those  authorities  show  that  the  proper  person  to  create 
the  trust  in  personal  property  is  the  person  in  whom  the  beneficial 
interest  of  the  property  is  vested ;  and  the  trust  being  created  by  the 
beneficial  owner,  the  trustee  is  bound,  and,  if  disposed  to  refuse,  may 
be  compelled,  to  obey  it. 

I  am  at  a  loss  to  find  any  reason  which  should  cause  this  document 
to  be  effectual  as  a  declaration  of  trust,  so  far  as  the  stock  is  con- 
cerned, and  not  so,  so  far  as  the  land  is  concerned.  It  is  obvious  that 
in  both  cases  the  person  enabled  by  law  to  declare  the  trusts  is  the 
same.  In  the  case  before  me,  there  can  be  no  doubt  that,  if  Mr.  Tier- 
ney had,  in  pursuance  of  this  paper,  signed  a  document  to  the  same 
effect,  stating  that  he  held  the  property  on  the  trusts  therein  mentioned, 
the  trusts  would,  apart  from  any  question  on  the  construction  of  the 
document,  have  been  fully  and  completely  declared  ;  and  it  is  also 
clear,  that  if  the  trustee  had  declared  that  he  held  the  property  on  any 
trusts  not  recognized  or  sanctioned  by  Alexander  Wood,  the  beneficial 
owner,  such  declaration  of  trust  woukl  have  been  insufficient  and  un- 
availing, and  would  have  given  no  interest  to  the  supposed  cestui  que 
trust.  A  declaration  of  trust  in  writing  by  Tierney  following  that  of 
Wood  would  therefore  have  been  merely  formal,  and  would  have  been 
valid  only  so  far  as  it  followed  his  instructions,  and  would  have  been 
void  to  the  extent,  if  any,  that  it  departed  from  his  directions.  I  think 
that  the  fair  conclusion  to  be  drawn  from  these  considerations  is,  that 
the  person  to  create  the  trust,  and  the  person  who  is  by  law  ena))led  to 
declare  the  trust,  are  one  and  the  same  ;  and  that,  consequently,  the 
beneficial  owner  is  the  person  by  law  enabled  to  declare  the  trust. 

This  is  confirmed  by  the  expression  in  the  clause  in  the  statute  which 
relates  to  "  the  last  will  in  writing,"  which  can  only  apply  to  the  bene- 

« 

1  16  Beav.  315. 


SECT.  VIII.]  TIERNEY  V.   WOOD.  185 

ficial  owner.  It  may  also  be  observed,  that  if  the  statute  had  intended 
that  no  trust  should  be  valid,  unless  evidenced  by  a  writing  signed  by 
the  trustees,  the  simple  and  obvious  course  would  have  been  to  have 
so  stated  it;  but  the  expression  used  is  not  "the  trustee,"  but  "the 
person  by  law  enabled  to  declare  the  trust."  That  person  is,  I  think, 
the  beneficial  owner  ;  and  I  am  of  opinion  that,  apart  from  any  question 
of  the  construction  of  the  document,  the  fact  of  its  having  been  signed 
by  Wood,  the  beneficial  owner,  transmitted  by  him  to  Tierney,  the 
legal  owner,  and  by  him  acted  upon,  constitutes  it  a  sufficient  decla- 
ration of  trust  within  the  seventh  clause  of  the  statute,  so  far  as  that 
clause  requires  it  to  be  signed  "  by  the  party  who  is  by  law  enabled  to 
declare  such  trust." 

The  next  question  is,  whether  the  document  itself,  apart  from  the 
signature,  is  or  purports  to  be  a  declaration  of  trust  at  all.  It  is  con- 
tended that,  if  anything,  it  is  a  will  imperfectly  executed,  that  it  con- 
tains no  direction  as  to  the  present  application  of  the  rents,  and  that 
the  rest  of  its  contents  savor  of  the  directions  contained  in  a  will  rather 
than  of  a  direction  how  to  apply  the  rents  of  the  property  ;  for  that  it  is 
not  to  take  effect  till  after  the  death  of  Alexander  Wood,  and  that  it 
contains  directions  for  sale  and  the  like,  inconsistent  with  the  nature 
and  duties  of  the  trust  which  M.  A.  Tierney  had  accepted.  There  is, 
undoubtedly,  some  force  in  these  observations ;  but,  on  the  whole,  I 
think  that  this  may  be  treated  as  a  valid  declaration  of  trust.  Although 
it  does  not  declare  the  whole  trust,  it  declares  the  trust  of  a  part,  and 
it  leaves  the  resulting  trust  untouched,  except  where  it  expressly  inter- 
feres therewith.  If  this  document  had  directed  Mr.  Tierney  to  pay 
the  rent  to  Mr.  Wood  during  his  life,  and  had  then  proceeded  as  it 
does,  this  objection  could  not,  in  my  opinion,  have  been  sustained  ;  but 
this  omission  is  not  sufficient  to  destroy  the  character  of  the  rest  of 
the  interest,  which,  unless  where  it  otlierwise  disposes  of  the  beneficial 
interest  in  the  property,  leaves  it  untouched,  under  the  resulting  trust 
vested  in  Mr.  Wood.  I  am  of  opinion,  therefore,  that  a  good  trust 
was  evidenced  by  tliis  writing  within  tlie  Statute  of  Frauds. 

The  only  remaining  question  is  the  interest  which  Mary  Wood  takes 
in  the  land  so  held  in  trust  for  her,  and  my  opinion  is  that  she  takes  an 
estate  tail.* 

1  Kronheim  v.  JohnHon,  7  Ch.  D.  GO  Accnrd.  —  Ed. 


186  DANSER  V.  WARWICK.  [CUW.  I. 


ELIZA  A.   DANSER  v.   WILLIAM  WARWICK. 

In  Chancery,  New  Jersey,  before  Hon.  A.  V.  Van  Fleet,  V.  C, 

October  Term,  1880. 

[Reported  in  33  New  Jersey  Eqiuti]  Reports,  133.] 

On  final  hearing  on  bill,  answer,  and  proofs  taken  before  a  master. 

Mr.  George  C.  Beekvian,  for  complainant. 

Mr.  Joel  Parker.,  for  defendant. 

The  Vice  Chancellor.  The  complainant  is  the  widow  of  David 
C.  Danser.  She  seeks  to  have  a  parol  trust  established  and  enforced 
against  the  defendant.  She  alleges  that  her  husband,  some  months 
before  his  death,  assigned  the  bond  and  mortgage  in  controversy  to  the 
defendant,  upon  a  parol  trust  or  understanding  that  he  would  forth- 
with, or  by  a  short  day,  transfer  them  to  her.  The  transfer  to  the 
defendant  was  intended  to  be  merely  a  step  in  vesting  her  with  title. 
The  assignment  to  the  defendant  bears  date  February  1st,  1875,  and 
Danser  died  on  the  13th  day  of  the  following  September.  The  bond 
and  mortgage  were  in  Danser's  possession  at  the  time  of  his  death, 
and  have  since  then  been  constantly  in  the  possession  of  the  com- 
plainant. The  defendant  has  never  asked  for  them,  nor  attempted  to 
get  possession  of  them.  A  month  or  six  weeks  prior  to  Danser's 
death,  the  defendant  directed  an  assignment  to  be  drawn  to  the  com- 
plainant, stating  to  the  person  to  whom  he  gave  the  direction  that  he 
must  draw  it  for  Danser,  who  would  pay  him.  He,  at  the  same  time, 
said  it  was  right  that  the  old  lady — referring  to  the  complainant — ■ 
should  have  the  bond  and  mortgage.  Dauser,  at  this  time,  was  pros- 
trated by  the  disease  which  shortly  afterwards  caused  his  death.  The 
defendant  did  not  remain  to  execute  the  assignment,  but  said  he  would 
return  soon  and  do  so.  He  did  not  return  that  day.  He  was  subse- 
quently informed,  on  two  or  three  different  occasions,  while  Danser 
was  living,  that  the  assignment  had  been  drawn  and  was  ready  for 
execution.  On  each  occasion  he  said  he  had  forgotten  or  neglected  to 
execute  it,  but  would  call  soon  and  do  so.  He  never  fulfilled  his 
promise.  Two  or  three  weeks  after  Danser's  death,  he  called  for  the 
assignment  Danser  had  made  to  him,  and  which  he  had  left  when  he 
gave  dii'ection  for  the  draft  of  the  one  to  the  complainant,  and  stated 
that  he  meant  to  do  what  was  right  about  the  matter,  but  he  would 
not  execute  the  assignment  to  the  complainant  until  things  were  fixed 
up  ;  Danser  owed  him.  He  took  both  papers  and  has  never  executed 
the  assignment  to  the  complainant. 

This  narrative  comprises  only  those  facts  which  are  not  disputed  by 
either  party. 

The  defendant  denies -that  the  mortgage  was  transferred  to  him  sub- 

•ject  to  a  trust,  but  says,  on  the  contrary,  that  the  assignment  was 

made  to  satisfy  a  promissory  note  he  held  against  Danser,  upon  which 


SECT.  VIII.]  DANSER  V.    WAEWICK.  187 

there  was  due  82,000  of  principal,  and  a  year  and  six  or  seven  mouths' 
interest.  His  explanation  of  the  preparation,  by  his  direction,  of  an 
assignment  to  the  complainant  is  this  :  he  says,  some  time  after  the 
execution  of  tlie  assignment  to  him,  he  ascertained  that  the  person 
who  made  the  mortgage  had  no  title  on  record  for  the  mortgaged 
premises  ;  that  he  went  at  once  to  Danser  and  told  him  he  had  swin- 
dled him,  and  that  if  he  did  not  take  the  mortgage  back  he  would 
make  him.  He  says  that  Danser  replied  that  the  mortgagor's  title 
was  all  right,  but  if  he  was  dissatisfied,  he  would  pay  him  his  debt,  or 
give  him  another  security,  and  he  could  then  reassign  the  mortgage. 
He  further  says  that  it  was  ultimately  arranged  that  Danser  should 
have  two  mortgages,  which  were  then  liens  on  his  lands,  cancelled, 
and  execute  a  mortgage  thereon  to  him,  and  he  was  then  to  assign  the 
mortgage  in  controversy  to  the  complainant.  He  says  it  was  after  this 
scheme  had  been  agreed  upon  that  he  ordered  the  assignment  to  the 
complainant  to  be  drawn. 

These  statements  present  the  question  of  fact  to  be  decided.  The 
counsel  of  the  defendant,  however,  insists  that,  as  a  matter  of  law, 
the  bill  in  this  case  must  be  dismissed,  regardless  of  what  the  evidence 
demonstrates  the  truth  to  be  in  respect  to  the  trust  alleged,  his  con- 
tention being  that  the  trust  set  ap  by  the  complainant  is  one  which 
cannot  be  established  except  by  written  evidence.  The  trust,  it  will 
be  observed,  affects  personal  property,  and  not  lands.  The  subject  of 
it  is  a  debt.  That  part  of  the  .Statute  of  Frauds  wliich  enacts  that  all 
declarations  and  creations  of  trust  shall  be  manifested  by  writing  and 
signed  by  the  party  creating  the  same,  or  else  shall  be  void  and  of  no 
effect,  applies  only  to  trusts  of  lands,  and  has  no  application  to  trusts 
of  personal  property.^     A  valid  trust  of  personalty  may  be  created 

'  Fane  v.  Fane,  1  Vern.  31  {semble) ;  Bayley  v.  Boulcott,  4  Russ.  346  (semble) ; 
Hawkins  v.  Gardner,  2  Sm.  &  G.  441,  451  ;  Peckham  v.  Taylor,  31  Beav.  2.'50;  Grant 
V.  Grant,  34  Beav.  023,  025;  Allen  v.  Withrow,  llOU.  S.  H!»,  129;  Cral.l)  v.  Tlionia.s, 
2.5  Ala.  212,  215;  Ilellman  v.  McWilliams,  70  Cal.  449;  Kirkpatrick  v.  Davidson, 
2  Ga.  297  ;  Hon  v.  Hon,  70  Ind.  135  ;  Collins  v.  Gibson,  29  Iowa,  61  ;  Cobb  v.  Knif^ht, 
74  .Me.  253;  Chaj^e  v.  I'crlcy,  148  Ma.'fs.  289;  Catlin  i;.  Birchard,  13  Mirh.  110;  Bost- 
wick  V.  MahafTy,  48  Mich.  342  ;  Kramer  o.  McCaugley,  11  Mo.  Ap.  420;  Kinil)all  v. 
Morton,  1  Ilalst.  Ch.  26  ;  Hooper  v.  Holmes,  3  Stockt.  122 ;  Day  v.  Hotii,  18  N.  Y.  448 ; 
Gadsden  v.  Whalcy,  14  S.  Ca.  210;  Harris  v.  Union  Bank,  1  Cold.  152;  Porter  v. 
Kullarid  Bank,  19  Vt.  410,  419  Accord. 

Similarly,  if  the  grantee  of  land  upon  an  or.al  trust  converts  tlie  land  into  per- 
sonalty and  admits  orally  that  he  holds  the  personalty  upon  the  original  trust,  he  is  of 
course  ehargealde.  Caldcr  v.  Moran,  49  Mich.  14  ;  Tracy  v.  Tracy,  3  Bnidf.  50  ;  Mallit 
V.  liynd,  69  Pa.  380;  Kverliart's  Ajij).,  100  I'a.  349;  Hess's  App.  112  Pa.  108. 

An  oral  agreement  by  A.  to  hoM  land  in  trust  for  B.,  and  to  pay  him  the  proceeds 
in  caae  of  a  sale,  is  within  the  statute.  But  an  oral  agreement  by  the  grantee  hohl- 
ing  under  an  oral  trust  simply  to  pay  the  cpsini  ifur  trust  the  j)rocceds  in  case  of  sale, 
is  not  within  the  statute,  and  may  be  enforced  if  supported  by  a  valid  consideration. 
Mohn  V.  Mohn,  112  Ind.  295;  Thomas  r.  Mowry,  113  Ind.  83. 

Chattels  Ue.vi.  arc  of  course  wiihin  tiie  Bt.atutc.  Skctt  v.  Whitmore,  Freem. 
Ch.  280;  Kiddle  v.  Emerson,  1  Vern.  108;  Bellasia  v.  Compton,  2  Vern.  294  ;  Ilutchins 
V.  Leo,  1  Atk.  447.  —  Eu. 


183  DANSER  V.  WArvWICK.  [CHAP.  I. 

vcrliall}'.  fiiul  proved  bj'  parol  evidence.  A  trust  of  personal  property, 
almost  precisely  like  the  one  under  consideration,  and  which  had  been 
created  by  mere  spoken  words,  and  was  supported  by  only  parol  evi- 
dence, was  upheld  by  Chancellor  Williamson  in  Hooper  v.  Holmes ;  ^ 
also  Kimball  i'.  Morton,''^  Sayre  v.  Fredericks,*  and  Eaton  v.  Cook;* 
2  Story's  Eq.  Jur.  §  \)12  ;  1  Perry  on  Trusts,  §  86.  A  valid  trust  of 
a  mortgage  debt  may  be  created  by  parol ;  for,  though  a  trust  thus 
created  cannot  embrace  the  land  held  in  pledge,  yet  it  is  good  as  to 
the  debt,  and  will  entitle  the  cestui  que  trust  to  sufficient  of  the  pro- 
ceeds of  sale,  when  the  land  is  converted  into  money,  to  pay  the  debt.^ 
Sayre  v.  Fredericks,*  Benbow  v.  Towusend,"  and  Childs  v.  Jordan.^ 

It  must  be  held,  then,  that  the  trust  alleged  in  this  case  is  valid, 
and,  if  it  has  been  sufficiently  proved,  the  complainant  is  entitled  to 
have  it  established  and  enforced.* 

There  must  be  a  decree  establishing  the  trust,  and  requiring  the 
defendant  to  execute  it.    The  defendant  must  pay  costs. 

1  3  Stockt.  122.  2  1  Hal.  Ch.  26. 

«  1  C.  E.  Gr.  205.  4  10  C.  E.  Gr.  55. 

5  Bellasis  v.  Compton,  2  Vern.  294  ;  Benbow  v.  Towusend,  1  M.  &  K.  510  (semble)  ; 
Pattenson  v.  Mills,  69  Iowa,  755 ;  Childs  v.  Jordan,  106  Mass.  321  ;  Buckliu  v.  Bucklin, 
1  Abb.  Ap.  242,  1  Keyes,  141,  s.  c. ;  Bunn  v.  Vaughan,  1  Abb.  Ap.  253 ;  Robblns  v. 
Robbins,  89  N.  Y.  259  Accord.  —  Ed. 

6  1  M.  &  K.  506.  7  106  Mass.  321. 

8  The  Court  found  the  facts  in  favor  of  the  complainant.  So  much  of  the  opinion 
as  relates  thereto  is  omitted.  —  Ed. 


SECT.  IX.]  JUNIPER  V.   BATCHELOR.  189 


SECTION   IX. 

The  Statute  of  Wills. 

JUNIPER  V.  BATCHELOR. 
In  Chancery,  before  Sir  G.  M.  Giffard,  V.  C,  June  26,  1868. 

[Reported  in  Weekly  Notes  (1868),  197.] 

Charles  Juniper,  by  a  will  dated  tlie  14tli  of  March,  1864,  devised 
and  bequeathed  all  his  real  and  personal  estate  to  W.  Batchelor,  T. 
Batchelor,  T.  Caffyn,  and  T.  B.  Penfold,  their  heirs,  executors,  admin- 
istrators, and  assigns,  absolutely,  as  tenants  in  common,  devised  to 
them  all  the  estates  vested  in  him  as  trustee  and  mortgagee,  and  ap- 
pointed them  his  executors.  On  the  20th  of  January,  1866,  he  made 
his  last  will  in  substantially  the  same  terms,  but  in  favor  of  the  said 
W.  Batchelor  and  T.  Batchelor,  J.  Burster  (instead  of  T.  Caffyn),  and 
the  said  T.  B.  Penfold.  On  the  6th  of  June,  1866,  he  died,  and  his 
will  was  proved  by  T.  Batchelor,  Burster,  and  Penfold  only.  Shortly 
after  his  death  a  tin  box  was  found  soldered  up,  in  which,  when  opened, 
were  discovered  four  letters,  purporting  to  be  signed  by  the  testator, 
all  dated  the  14th  of  March,  1864,  and  in  the  same  terms,  and  ad- 
dressed to  W.  Batchelor,  T.  Batchelor,  T.  Caffyn,  and  T.  B.  Penfold 
respectively.  Each  letter  was  to  the  effect  that  the  writer  wished  the 
person  addressed  to  retain  for  liimself  out  of  the  estate  £200,  and  that, 
after  payment  of  succession  and  legacy  duties  and  expenses,  the  surplus 
which  would  be  realized  by  public  auction  sale  of  his  estate  should  be 
givf-n  to  tlie  Sussex  County  Hospital,  Brighton.  The  bill  was  filed  by 
the  heir  at  law  and  customary  heir  of  the  testator,  alleging  that  the 
real  and  personal  estate  was  devised  to  the  four  devisees  on  a  concealed 
trust  for  charitable  purposes,  which  they  promised  and  agreed  to  per- 
form, and  prayed  for  a  declaration  that  the  devise  and  bequest  might 
be  declared  void,  or  that  tlic  devisees  might  be  declared  trustees  for  the 
plaintiffs,  and  might  be  decreed  to  convey  and  surrender  the  same. 
T.  Batchelor  said  lie  agreed  to  be  the  testator's  executor,  but  the  tes- 
tator said  nothing  to  him  about  the  disposition  of  his  property.  Burster 
said  the  same,  and  that  the  testator  said  something  about  letters,  but 
he  (r.nrstfr)  did  not  know  what  Ik;  )neant.  Testator  said  lie  had  quar- 
relled with  Caffyn.  Tenfold  said  lie  promised  to  be  the  testator's 
executor,  and  testator  said  "there  would  be  letters  found,"  but  did  not 
explain  what  he  meant.  On  the  12th  of  July,  1866,  the  testator's  real 
and  personal  estate  was  conveyed  by  the  four  trustees  to  a  trustee  for 
the  three  who  had  proved  the  will. 


190  JUNIPER  V.   BATCIIELOR.  [CHAP.  I. 

J^^^l/i  Q'  C.,  and  Ince,  for  the  plaiutifTs. 

Druce,  Q.  C,  and  G.  N.  Colt,  for  the  defendants,  the  devisees,  and 
Wickens  for  the  defendant,  the  Attorney  General,  were  not  called 
upon. 

The  Vice  Chancellor  said  he  did  not  think  the  communications  had 
gone  far  enough  to  bring  the  case  within  the  authorities  which  had  been 
cited.  The  testator  asked  these  devisees  to  be  his  executors.  They 
said  they  would.  Nothing  intelligible  was  said  about  letters  ;  nothing 
about  the  will  of  the  testator ;  nothing  about  his  intention.  If  there 
had  been  no  letters,  it  was  conceded  that  the  devisees  would  have  been 
entitled.  Then  how  could  it  be  contended  that  they  made  any  differ- 
ence, if  they  were  not  communicated  in  some  shape  or  form  to  these 
persons?  Some  knowledge  must  be  made  out  of  the  testator's  inten- 
tion, sufficient  to  have  made  it  a  fraud  for  these  devisees  to  retain  the 
property.  Nothing  of  that  kind  had  been  established;  and  the  bill 
must  be  dismissed  with  costs. ^ 

1  Adlington  v.  Cann,  3  Atk.  141,  151 ;  Muckleston  v.  Brown,  6  Ves.  52,  62-63 
(explaining  Bishop  v.  Talbot,  6  Ves.  60,  cited) ;  Wallgrave  v.  Tebbs,  2  K.  &  J.  313; 
Tee  V.  Ferris,  2  K,  &  J.  357 ;  Irvine  v.  Sullivan,  8  Eq.  673 ;  Schultz's  App.,  80  Pa. 
396  Accord. 

The  dicta  contra  in  Fane  v.  Fane,  1  Vern.  30,  and  Boson  v.  Statham,  1  Eden,  514, 
are  not  law. 

On  the  other  hand,  extrinsic  evidence  that  a  gratuitous  deed  was  not  intended  to 
benefit  the  grantee,  although  not  communicated  to  the  grantee,  is  competent  to  turn 
him  into  a  constructive  trustee  for  the  grantor.  Birch  v.  Blagrave,  Amb.  264  ;  Chil- 
ders  V.  Childers,  1  DeG.  &  J.  482.  But  see,  contra,  Todd  v.  Munson,  53  Conn. 
579.  —  Ed. 


SECT.  X.1  FOSTER  V.   ELSLEY.  191 


SECTION  X. 

The  Subject  Matter  of  a  Trust. 

FOSTER  V.   ELSLEY. 

In  the  High  Court  of  Justice,  Chancery  Division,  December  13 

1881. 

[Reported  in  19  Chancery  Division,  518.] 

George  May  Upfield,  by  his  will,  dated  the  31st  of  October,  1879, 
'after  appointing  the  defendants  his  executors  and  trustees,  devised 
and  bequeathed  to  them  all  his  real  and  personal  estate  upon  the  trusts 
therein  set  forth,  and  the  will  contained  the  following  clause:  "  And 
I  declare  that  my  solicitor,  William  Edward  Foster "  (the  plaintiff) , 
"  shall  be  the  solicitor  to  my  estate  and  to  my  said  trustees  in  the 
management  and  carrying  out  the  provisions  of  this  my  will." 

The  testator  died  on  the  3d  of  November,  1879,  and  his  will  was 
subsequently  proved  by  the  defendants,  who,  in  pursuance  of  the  direc- 
tions contained  in  the  will,  employed  the  plaintiff  as  their  solicitor  in 
the  management  of  the  trust  estate  up  to  the  13th  of  October,  1881, 
when  he  received  a  letter  from  certain  solicitors  at  Oldham  stating  that 
they  were  instructed  by  the  defendants  to  ask  for  the  immediate  deliv- 
ery of  all  deeds,  documents,  and  securities  in  his  possession,  relating 
to  the  estate  of  the  testator,  and  also  an  account  of  costs  due  to  the 
plaintiff,  and  also  for  an  appointment  for  them  to  attend  at  the  plain- 
tiff's oflice  and  pay  such  costs,  and  receive  the  documents. 

This  was  a  motion  by  the  plaintiff  to  restrain  the  defendants  from 
employing  any  person  other  than  the  plaintiff  as  solicitor  to  the  estate 
of  the  testator,  or  in  any  business  relating  to  the  management  or 
carrying  out  of  the  provisions  of  his  will. 

Dnnflas  Gardiner^  in  support  of  the  motion.  The  testator  has 
thought  fit  to  appoint  Mr.  Foster  solicitor  to  his  estate  and  to  his  trus- 
tees, and  they  cannot,  I  submit,  arbitrarily  remove  him  from  the  oflice, 
nothing  being  charged  against  him  in  the  discharge  of  his  duties.  I 
rely  upon  Williams  v.  Corljct*  and  Ilibbert  v.  IIibl)ert.^ 

//ice,  (.1-  C,  and  Hamilton  Ilumphrci/s,  for  tlic  defendants,  were 
not  called  ui)on,  but  referred  to  Shaw  v.  Lawless,^  and  Finden  v. 
Stephens.* 

CniTTY,  J.  The  testator  in  this  case  has  inserted  a  clause  in  his 
will  that  "  my  solicitor,  W.  E.  Foster,  shall  be  the  solicitor  to  my  es- 

1  8  Sim.  .349.  2  3  T\fpr.  681. 

»  5  CI.  &F.  129.  »  arh.  142. 


102  GRAVES  V.   GRAVES.  [CHAP.  I. 

tate  auil  to  my  said  trustees  iu  the  management  and  carrying  out  the 
provisions  of  this  my  will,"  and  this  motion  is  founded  on  the  propo- 
sition that  this  clause  imposes  on  his  trustees  the  duty  of  employing 
this  gentleman  (the  plaintiff)  as  their  solicitor.  In  Finden  v.  Stephens, 
to  which  I  liave  been  referred,  the  direction  was  that  a  certain  person 
should  be  employed  as  agent  and  manager  of  the  testator's  estates 
whenever  his  trustees  should  have  occasion  for  the  services  of  a  person 
in  that  capacity,  and  it  was  held  that  the  direction  did  not  create  a 
trust  which  such  person  could  enforce.  The  case  of  Shaw  v.  Lawless, 
iu  the  House  of  Lords,  had  previously  decided  the  question.  I  am 
told  that  no  case  is  to  be  found  iu  the  books  like  the  one  before  me 
where  a  testator  has  appointed  a  particular  person  as  solicitor  to  his 
estate,  but  in  analogy  to  the  cases  to  which  I  have  referred  I  decide 
that  the  direction  in  this  will  imposes  no  trust  or  duty  on  the  trustees 
to  continue  the  plaintiff  as  their  solicitor,  and  that  being  my  decision 
I  refuse  this  motion  with  costs.^ 


GRAVES  V.    GRAVES. 
In  Chancery,  Ireland,  before  Brady,  C,  May  8,  1862. 

[Reported  in  13  Irish  Chancery  Reports,  182.] 

"William  Graves,  by  his  will,  devised  certain  real  and  personal 
property  to  trustees  upon  trust,  amongst  other  things,  to  pay  to  his 
wife  an  annuity  of  £100  a  year  for  life,  in  addition  to  her  jointure,  and 
also  to  pay  to  his  sister  an  annuity  of  ^50  a  year  for  life.  The  will 
then  contained  the  following  passage :  "  And  I  do  hereby  declare  it  to 

1  Shaw  V.  Lawless,  5  CI.  &  F.  129  ("And  it  is  also  my  particular  desire,  that  my 
said  executurs,  whilst  acting  in  the  management  of  all  or  any  of  my  affairs  under  this 
my  will,  .  .  .  shall  continue  the  said  B.  E.  L.  in  the  receipt  and  management  of  my 
said  rents,  ...  at  the  usual  fees  allowed  to  agents,  he  having  acted  for  me  since  I 
became  possessed  of  said  estate  fully  to  my  satisfaction  "). 

Finden  v.  Stephens,  2  Phill.  142  ("And  inasmuch  as  my  estates  and  property  will 
require  more  management  than  I  can  expect  of  my  trustees  personally  to  bestow,  it 

is  my  wish  and  desire  that  T.  F in  whose  judgment  and  integrity  I  place  great 

confidence,  be  appointed  for  all  purposes  for  which  they  or  he,  my  trustees  and  trustee 
may  have  occasion  for  an  agent,  receiver,  or  manager  of  all  or  any  of  my  estates  and 
property")  Accord. 

But  see,  contra  : 
^  Hibbert  v.  Ilibbert,  3  Mer.  681  (Testator  devised  to  trustees  and  directed  that  his 
friend  A.  H.  should  be  appointed  receiver  of  his  real  and  personal  estates,  adding  that 
he  made  that  appointment  for  the  sake  of  benefiting  A.  II.  in  a  pecuniary  point  of 
Wew). 

Williams  V.  Corbet,  8  Sim.  349  (Testator  devised  to  trustees  and  appointed  plaintiff 
to  be  the  auditor  of  the  accounts  of  his  estates  during  the  execution  of  the  trust  of 
bis  will,  and  directed  his  trustees  to  pay  to  the  plaintiff  the  customary  remuneration 
for  such  services).  — Ed. 


SECT.  X.]  GRAVES   V.   GRAVES.  193 

be  my  earnest  wish  that  my  said  sister  shall  reside  at  Gravesend  with 
my  dear  wife  during  her  life."  The  testator  devised  his  house  at 
Gravesend,  with  the  household  furniture,  &e.,  to  his  wife  for  life.  Mr. 
Graves  died  in  1853.  Misunderstandings  having  arisen  between  Mrs. 
and  Miss  Graves,  they,  in  1853,  ceased  to  live  together;  and  the 
petition  in  this  cause  was  filed  by  Miss  Graves,  praying  a  declaration 
of  her  right  to  reside  at  Gravesend  during  her  life,  and  to  be  boaxded 
by  Mrs.  Graves. 

Mr.  Warren  and  Mr.  Dames^  for  tlie  petitioner. 

Mr.  Brewster  and  3fr.  A.  Henderson^  contra.^ 

The  Lord  Chancellor.  There  can  be  no  doubt  that  an  expression 
of  the  testator's  wish  may  attach  on  the  property  devised  by  him,  and 
may  be  enforced  by  this  court ;  but  we  are  always  bound  to  consider 
the  subject  matter  to  be  effected,  and  to  see  what  the  testator  really 
intended  to  be  done. 

Had  this  expression  of  wish  been  attached  on  any  property,  as  upon 
a  house,  it  would  be  one  thing ;  as,  if  he  had  said,  "  I  wish  that  my 
sister  should  reside  in  my  house  at  Gravesend,"  it  might  be  said  that 
this  gave  her  a  right  to  have  a  portion  of  the  house  allotted  to  her. 
Those,  however,  are  not  the  words  of  the  present  will,  which  says, 
"  I  declare  it  to  be  my  earnest  wish  that  my  said  sister  shall  reside  at 
Gravesend  with  my  dear  wife  during  her  life."  What  does  that  mean? 
It  means,  if  anything,  that  they  should  reside  together.  He  intends, 
with  respect  to  both,  for  the  sake  of  mutual  society  and  comfort,  that 
they  should  pass  their  lives  together.  I  should  hesitate  long  before 
saying  that  this  was  a  trust  which  this  court  would  enforce.  The  right 
of  maintenance  is  given  up ;  but  if  it  were  not,  could  tiiis  court  be 
called  on  to  say  which  was  riglit  and  which  was  wrong,  in  their  mis- 
understanding, or  to  say  that  they  were  to  be  compelled  to  spend  their 
time  together?  The  will,  however,  in  my  opinion,  does  not  point  to 
residence  as  property  in  the  house,  but  to  residence  with  Mrs.  Graves 
as  a  meml)cr  of  her  family.  I  cannot  give  an  equivalent.  An  equiva- 
lent would  destroy  a  part  of  tlie  bequest,  the  intention  of  which  was 
to  give  to  each  from  the  other  the  Ijenefit  of  society  and  intercourse. 
I  cannot  say  that  a  residence,  or  payment  for  one,  would  be  an  equiva- 
lent; and  if  these  ladies  cannot  agree  to  live  together  on  friendly 
terms,  I  cannot  compel  thero.* 

*  The  argnments  of  counsel  are  omitted.  —  Ed. 
I       2  Sff!  Dawkin  v.  Penrliyn,  4  Ajij).  Ca.s.  51. 

Real  cHtatc  forms  the  Hpccific  ns  in  most  trusts.  Bnt  personal  property  may,  of 
course,  l^e  held  in  trust  a«  freely  as  land  ;  and  choses  in  action  as  well  as  choscs  iu  pos- 
session. Flotfher  v.  Fletcher,  itupra,  f.O,  ii.  2  ;  Williams  v.  Codriiigton,  1  Vcs.  Kr.  !y\A  ; 
Clough  V.  Lamhert,  10  Sim.  174;  Murray  v.  I'lavcll,  2:>  Ch.  Div.  HI).  102;  KIdridge  v. 
Turner,  11  Ala.  1049;  Gordon  v.  Small,  M  Md.  .'j.'50 ;  Danser  v.  Warwick,  supra,  186, 
188;  Cummins  v.  Barkalon,  1  Ahh.  Ap.  473  ;  Fogg  v.  Middlctcm,  sujirn,  65. 

I'urely  personal  rights  cannot  lie  held  in  trust;  e.g.  a  jieerage,  an  office,  and  the 
like.     Biickhurst  I'eerago,  2  App.  Cas.  1  ;  1  Gray,  Casas  on  Tropcrty,  Chap.  IV. 

On  grounds  of  public  policy  there  are  a  few  exceptions  to  the  rule  that  whatever 

13 


19-4  GRAVES   V.  GRAVES.  [CIIAP.  I. 

may  lie  tr.insfcrrcil  may  bo  the  subject  of  a  trust ;  e.  g.  a  homostoaJ  entry :  Clark 
V.  Kayley,  5  Oreg.  343.  Au  improvement  right:  Smith  v.  Oliver,  11  S.  &  R.  257. 
Formerly  the  registered  owner  of  a  ship  under  the  English  Registry  Acts  could  not 
be  au  e.\press  trustee  of  tJie  ship.  Ex  parte  Yallop,  1.")  Ves.  60;  Ex  parte.  Houghton, 
17  Ves.  231  ;  Camden  v.  Anderson,  5  T.  K.  709;  altliough  in  case  of  fraud  he  miglit 
be  a  constructive  trustee.  Holderness  v.  Lamjjort,  29  Bcav.  129.  At  the  pre.seut  day, 
however,  a  registered  ship  may  be  the  subject  of  a  trust ;  but  the  trust  cannot  be 
registered.  Chasteauueuf  v.  Capeyron,  7  App.  Cas.  127.  The  same  rule  ai)j)lies 
to  patents :  Edmunds,  Letters  Patent,  503.  Trade  marks :  Sebastian,  Trade  Marks 
(3d  ed.)  108.  Shares  in  English  companies :  Buckley,  Companies  Acts,  (6th  ed.) 
85-87.  —  Ed. 

/ 


J 


\ 

\ 


SECT.  XI.]  MOlilCE  V.   THE   BISHOP   OF   DURHAM.  195 


SECTION  XI. 
The   Cestui  que  Trust. 

MORICE  V.  THE  BISHOP  OF   DURHAM. 
In  Chancery,  before  Lord  Eldon,  C,  March  18,  20,  1805. 

[Reported  in  10  Vesei/,  521.] 

This  cau&e  came  ou  iipou  an  appeal  by  the  defendant,  the  Bishop 
of  Durham,  from  the  decree  of  the  Master  of  the  Rolls, 

Ann  Cracherode,  by  her  will,  dated  the  16th  of  April,  1801,  and 
duly  executed  to  pass  real  estate,  after  giving  several  legacies  to  her 
next  of  kin  and  others,  some  of  which  she  directed  to  be  paid  out  of 
the  produce  of  her  real  estate,  directed  to  be  sold,  bequeathed  all  her 
personal  estate  to  the  Bisliop  of  Durham,  his  executors,  &c.,  upon 
trust  to  pay  ber  debts  and  legacies,  &c. ;  and  to  dispose  of  the  ulti- 
mate residue  to  such  objects  of  benevolence  and  liberality  as  the 
Bishop  of  Durham  in  his  own  discretion  shall  most  approve  of ;  and 
she  appointed  the  Bishop  her  sole  executor. 

The  bill  was  filed  by  the  next  of  kin  to  have  the  will  established 
except  as  to  the  residuary  bequest,  and  that  such  bequest  may  be 
declared  void.  The  Attorney  General  was  made  a  defendant.  The 
Bishop,  by  his  answer,  expressly  disclaimed  any  beneficial  interest  in 
himself  personally.^ 

Mr.  liidiarda  and  Mr.  Martin,  in  support  of  the  appeal. 

The  Attorney  General  (Hon.  Spencer  Perceval)  and  Afr.  Mitfordt 
against  the  decree.'' 

'I'liK  Lord  Chancellor  (Eldon).  This,  with  the  single  exception 
of  Brown  v.  Yeall,^  is  a  new  case.  The  questions  arc,  1st,  Whetlior  a 
trust  was  ititcnded  to  be  created  at  all?  2(lly,  Wlietlier  it  was  elTect- 
ually  created?  Sdly,  If  ineffectually  created,  whether  the  defendant, 
the  Bishop  of  Durliam,  can,  according  to  the  decisions,  and  upon  the 
authority  of  those  decisions,  lake  this  property  for  his  own  use  and 
benefit.  Ah  to  tlie  last,  I  uudcrslnnJ  a  doubt  has  been  raised  in  the 
dis(.'UHsion  of  some  (piestion  bearing  analogy  to  this  in  another  court,  — 
how  far  it  is  competent  to  a  testator  to  give  to  his  friend  his  personal 
estate,  to  apply  it  to  such  purposes  of  bounty  not  arising  to  trust  as 
the  testator  himself  would  have  l)een  likely  to  apply  it  to.  That  ques- 
tion, as  far  as  this  court  has  to  do  with  it,  depends  altogether  u[)on 
this  :  iff  the  testator  meant  to  create  a  trust,  and  not  to  make  an  abso- 

'  The  fltatpmont  of  tacta  ih  taken  from  the  roport  of  the  case  iu  9  Vcs.  3'J'J. 
'■*  The  arf^meuLs  of  counsel  are  oinittoU.  —  Eu. 
8  7  Ves.  .50.  a. 


196  MORICE   V.   THE  BISIIO?   OF  DURHAM,  [CHAP.  L 

lute  gift,  but  the  trust  is  iueffcctuall}  created,  is  not  expressed  at  dl, 
or  fails,  the  next  of  kiu  take.  On  the  other  baud,  if  the  party  is  to 
take  himself,  it  must  be  upon  this  ground,  according  to  the  authori- 
ties, —  that  the  testator  did  not  mean  to  create  a  trust,  but  intended  a 
gift  to  that  person  for  his  own  use  and  benefit ;  for  if  he  was  intended 
to  have  it  entirely  in  his  own  power  and  discretion  whether  to  make 
the  application  or  not,  it  is  absolutely  given,  and  it  is  the  effect  of  his 
own  will  and  not  the  obligation  imposed  by  the  testament :  the  one 
inclining,  the  other  compelling,  him  to  execute  the  purpose.  But  if 
he  cannot,  or  was  not  intended  to,  be  compelled,  the  question  is  not 
then  upon  a  trust  that  has  failed,  or  the  intent  to  create  a  trust ;  but 
the  will  must  be  read  as  if  no  such  intention  was  expressed  or  to  be 
discovered  in  it. 

Pierson  v.  Garnet,'  and  the  other  cases  of  that  class,  do  not  bear 
upon  this  in  any  degree ;  for  the  question,  whether  a  trust  was  in- 
tended, arose  from  two  or  three  circumstances,  which  must  all  concur 
where  there  is  no  express  trust.     Prima  facie  an  absolute  interest  was 
given,  and  the  question  was,  whether  precatory,  not  mandatory,  words 
imposed  a  trust  upon  that  person  ;  and  the  court  has  said,  before  those 
words  of  request  or  accommodation  create  a  trust,  it  must  be  shown 
that  the  object  and  the  subject  are  certain ;  and  it  is  not  immaterial 
to  this  case  that  it  must  be  shown  that  the  objects  are  certain.     If 
neither  the  objects  nor  the  subject  are  certain,  then  the  recommenda- 
tion or  request  does  not  create  a  trust ;  for  of  necessity  the  alleged 
trustee  is  to  execute  the  trust,  and,  the  property  being  so  uncertain 
and  indefinite,  it  may  be  conceived  the  testator  meant  to  leave  it 
entirely  to  the  will  and  pleasure  of  the  legatee,  whether  he  would  take 
upon  himself  that  which  is  technically  called  a  trust.     Wherever  the 
subject  to  be  administered  as  trust  property,  and  the  objects  for  whose 
benefit  it  is  to  be  administered  are  to  be  found  in  a  will,  not  expressly 
creating  trust,  the  'indefinite  nature  and  quantum  of  the  subject,  and 
the  indefinite  nature  of  the  objects,  are  always  used  by  the  court  as 
evidence  that  the  mind  of  the  testator  was  not  to  create  a  trust ;  and 
the  difficulty  that  would  be  imposed  upon  the  court  to  say  what  should 
be  so  applied,  or  to  what  objects,  has  been  the  foundation  of  the 
argument  that  no  trust  was  intended. 

But  the  principle  of  those  cases  has  never  been  held  in  this  court 
applicable  to  a  case  where  the  testator  himself  has  expressly  said  he 
gives  his  property  upon  trust.  If  he  gives  upon  trust,  hereafter  to  be 
declared,  it  might  perhaps  originally  have  been  as  well  to  have  held 
that,  if  he  did  not  declare  any  trust,  the  person  to  whom  the  property 
was  given  should  take  it.  If  he  says  he  gives  in  trust  and  stops 
there,  meaning  to  make  a  codicil  or  an  addition  to  his  will,  or,  where 
he  gives  upon  trusts  which  fail,  or  are  ineffectually  expressed,  in  all 
those  cases  the  court  has  said,  if  upon  the  face  of  the  will  there  is 
declaration  plain  that  the  person  to  whom  the  property  is  given  is  to 

I  2  Bro.  C.  C.  38,  22G. 


SECT.  XI.]  MOKICE   V.   THE   BISHOP   OF   DURHAM.  197 

take  it  in  trust ;  and,  though  the  trust  is  not  declared,  or  is  ineffect- 
ually declared,  or  becomes  incapable  of  taking  effect,  the  party  taking 
shall  be  a  trustee ;  if  not  for  those  who  were  to  take  by  the  will,  for 
those  who  take  under  the  disposition  of  the  law.  It  is  impossible, 
therefore,  to  contend  that,  if  this  is  a  trust  ineffectually  expressed, 
the  Bishop  of  Durham  can  hold  for  his  own  benefit.  I  do  not  advert 
to  what  appears  upon  the  record  of  his  intention  to  the  contrary,  and 
his  disposition  to  make  the  application  ;  for  I  must  look  only  to  the 
will,  without  any  bias  from  tlie  nature  of  the  disposition,  or  the  tem- 
per and  quality  of  the  person  who  is  to  execute  the  trust. 

The  next  consideration  is,  whether  this  is  a  trust  effectually  de- 
clared ;  and,  if  not  as  to  the  whole,  as  to  part.  I  put  it  so ;  as  it  is 
said,  if  the  word  "benevolence"  means  charity,  and  "liberality*' 
means  something  different  from  that  idea,  which  in  a  court  of  justice 
we  are  obliged  to  apply  to  that  word  "  charity"  (and,  I  admit,  we  are 
obliged  to  apply  to  it  many  senses  not  falling  within  its  ordinary  sig- 
nification), there  is  a  ground  for  an  application  in  this  case  partially, 
if  it  cannot  be  wholly,  to  charity.  It  does  not  seem  to  me  upon  the 
authorities,  particularly  the  Attorney  General  v.  Whorwood,'  that  the 
argument  for  a  proportionate  division,  or  a  division  of  some  sort, 
would  be  displaced.  I  take  the  result  of  that  case  to  be  that  the  sub- 
stratum of  that  charity  failed,  and  all  those  partial  dispositions  that 
would  have  been  good  charity  if  not  connected  with  that,  failed  to- 
gether with  it.  It  has  been  decided  upon  that  principle,  that,  though 
money  may  be  given  to  an  infirmary  or  a  school,  yet,  if  that  bequest 
is  connected  with  a  purpose  of  building  an  infirmary  or  school,  and 
the  money  is  then  to  be  laid  out  upon  it  so  built,  the  purpose,  which 
is  the  foiindation,  failing,  the  superstructure  must  fail  \vith  it.  The 
Attorney  General  v.  Doyley^  is  almost  the  only  case  that  has  been 
cited  for  a  proportional  division.  The  testator  expressly  directed  the 
trustees  to  dispose  of  his  estate  to  such  of  his  relations,  of  his 
mother's  side,  who  were  most  deserving,  and  in  such  manner  and  pro- 
portions as  they  should  tliink  fit,  to  such  charitable  use  as  tlioy  should 
think  most  proper  and  convenient;  and  the  court,  which  has  taken 
strong  lilierties  upon  this  subject  of  charity,  though  the  manner  and 
proportion  were  left  to  certain  individuals,  held  that  equality  is  equity, 
and  there  should  be  an  equal  division  ;  but  it  is  expressly  declared 
that  those  who  took  were  persons  who  could  take  under  a  ho([U('st  to 
charitabh)  uses,  and  there  was  no  dilliculty  in  that  case  in  saying,  tliose 
words  must  be  construed  according  to  the  habit  and  allowed  authori- 
ties of  the  court. 

The  (»nly  case  decided  upon  any  principle  that  can  govern  thia  is 
Brown  r.  Yeall,'  whicii  applies  slrongly.  I  do  not  trust  myself  with 
the  question  whether  the  principle  was  well  applied  in  tiiat  instance, 

'  1  Ves.  5.34;  Grieves  v.  Coho,  1  Vcb.  54S  and  n.,  5.'j4. 

'  4  Via.  48.') ;  2  Eq.  Ca.  Ab.  184.  Stated  from  the  llcgiater'a  book,  in  the  note^ 
7  Ves.  58. 

»  7  Ves.  50,  n. 


198  MOUiCE  V.  THE  BISHOP  of  Durham.  [chap.  i. 

but  the  decisiou  furnishes  a  principle  which  the  court  must  endeavor 
well  to  npi)ly  in  cases  that  occur.  I  do  not  hesitate  to  say  I  entertain 
doubt,  not  of  the  principle  upon  wliich  that  case  was  decided,  but 
whether  it  was  well  ai)plied  in  tliat  instance.  Mr.  Bradley  was  a  very 
able  lawyer,  yet  he  mistook  his  way,  as  Serjeant  Aspinall  had  not  long 
before.  Mr.  Bradley  gave  a  great  portion  of  his  fortune  to  accumulate 
for  many  years,  and,  meaning  that  it  should  be  disposed  of  to  chari- 
table purposes,  constituted  a  fund,  expressly  stating  tbat  his  purpose 
was  a  charitable  purpose,  and  confirming  that  by  directing  that  chari- 
table purpose  to  be  carried  on,  as  to  the  mode  of  executing  it,  by  that 
court  which,  according  to  the  constitution  of  the  country,  ordinarily 
administers  property  given  to  charitable  uses.  In  his  opinion,  there- 
fore, independent  of  particular  authority,  there  was  a  principle,  sug- 
gested by  all  otlier  cases  of  trust,  that  if  a  trust  was  declared  in  such 
terms  that  this  court  could  not  execute  it,  that  trust  was  ill  declared, 
and  must  fail,  for  the  benefit  of  the  next  of  kin.  The  principle  upon 
which  that  trust  was  ill  declared  is  this.  As  it  is  a  maxim  that  the 
execution  of  a  trust  shall  be  under  the  control  of  tlie  court,  it  must  be 

^f  !JU(ih  it  uiiiiu'ii  Lh'iL  11  (iuii  by  iiudyr  ihtii  (■onii'bi,  ^6  ihiiL  IM  tWUnm- 

istratiou  of  it  can  be  reviewed  by  the  court ;  or,  if  the  trustee  dies,  the 
court  itself  can  execute  the  trust ;  a  trust,  therefore,  which,  iu  the  case 
o!  mulildllllUiijLl'iiUbn,  could  be  retormecT,  'and  a  due  administration  d?* 
rected,  and  then,  unless  the  subject  and  the  objects  can  be  ascertained 
upon  principles  familiar  in  other  cases,  it  must  be  decided  that  the 
court  can  neither  reform  maladministration  nor  direct  a  due  adminis- 
tration. That  is  the  principle  of  that  case.  Upon  the  question  whether 
that  principle  was  well  applied  in  that  instance,  different  minds  will 
reason  differently.  1  should  have  been  disposed  to  say  that,  where 
such  a  purpose  was  expressed,  it  was  not  a  strained  construction  to 
hold  that  the  happiness  of  mankind  intended  was  that  which  was  to  be 
promoted  by  the  circulation  of  religious  and  virtuous  learning ;  and, 
the  testator  having  stated  that  to  be  the  charitable  purpose,  which  un- 
questionably was  so,  the  distribution  of  books  for  the  promotion  of 
religion,  the  court  might  have  so  understood  him  ;  and  the  testator 
having  not  only  called  it  a  charitable  purpose,  but  delegated  the  exe- 
cution to  this  court,  ought  to  be  taken  to  have  meant  that. 

Upon  these  grounds  in  a  subsequent  case.  The  Attorney  General  v. 
Stepney,^  as  to  the  Welch  charities,  it  appeared  to  me  too  much,  con- 
sidering the  Society  in  this  country  for  the  Propagation  of  the  Gospel, 
«&c.,  to  say  a  trust  for  the  circulation  of  bibles,  prayer-books,  and  other 
religious  books  was  not  good.  Then,  looking  back  to  the  history  of 
the  law  upon  this  subject,  I  say,  with  the  Master  of  the  Rolls,  that  a 
case  has  not  been  yet  decided  in  which  the  court  has  executed  a  chari- 
table purpose,  unless  the  will  contains  a  description  of  that  which  the 
law  acknowledges  to  be  a  charitable  purpose,  or  devotes  the  property 
to  purposes  of  charity  in  general.     Upon  those  cases  in  which  the  will 

1  10  Vee.  22. 


SECT,  XI.]  MORICE   V.   THE   BISHOP    OF   DURHAM.  199 

devotes  the  property  to  chai-itable  purposes,  described,  observation  is 
unnecessary.  "With  reference  to  those  in  which  the  court  takes  upon 
itself  to  say  it  is  a  disposition  to  charity,  where  in  some  the  mode  is 
left  to  individuals,  in  others  individuals  cannot  select  either  the  mode 
or  the  objects,  but  it  falls  upon  the  king,  as  parens  patrice,  to  apply  the 
property,  it  is  enough  at  this  day  to  say,  the  court,  by  long  habitual 
consti'uction  of  those  general  words,  has  fixed  the  sense ;  and,  where 
there  is  a  gift  to  charity  in  general,  whether  it  is  to  be  executed  by 
individuals  selected  by  the  testator  himself,  or  the  king,  as  pa?*e7is 
patrice,  is  to  execute  it,  (and  I  allude  to  the  case  in  Levinz,  The  At- 
torney General  v.  Matthews,*)  it  is  the  duty  of  such  trustees  on  the  one 
hand,  and  of  the  crown  upon  the  other,  to  apply  the  money  to  charity 
in  the  sense  which  the  determinations  have  affixed  to  that  word  in  this 
court ;  viz.  either  such  charitable  purposes  as  are  expressed  in  the 
statute  (43  Eliz.  c.  4),  or  to  purposes  having  analogy  to  those.  I  be- 
'ieve  the  expression  "  charitable  purposes,"  as  used  in  this  court, 
has  been  applied  to  many  acts  described  in  that  statute,  and  analo- 
gous to  those,  not  because  they  can  with  propriety  be  called  charitable, 
but  as  that  denomination  is  by  the  statute  given  to  all  the  purposes 
described. 

The  question,  then,  is  entirely  whether  this  is  according  to  the  in- 
tention a  gift  to  purposes  of  charity  in  general  as  understood  in  this 
court ;  such  that  this  court  would  have  held  the  Bishop  bound,  and 
would  have  compelled  him  to  appl}^  the  surplus  to  such  charitable  pur- 
poses as  can  be  answered  only  in  obedience  to  decrees  where  the  gift 
is  to  charity  in  general ;  or  is  it,  or  may  it  be  according  to  the  intention, 
to  such  purposes,  going  beyond  those  partially  or  altogether  which  the 
court  understands  by  "charitable  purposes";  and,  if  tnat  is  the  in- 
tention, is  the  gift  too  indefinite  to  create  an  effectual  trust  to  be  here 
executed?  The  argument  has  not  denied,  nor  is  it  necessary,  m  order 
to  support  this  decree,  that  the  person  created  the  trustee  might  give 
the  property  to  such  charitable  uses  as  this  court  holds  charitable  uses 
within  the  ordinary  meaning.  It  is  not  contended,  and  it  is  not  neces- 
sary, to  support  this  decree,  to  contend,  that  the  trustee  might  not 
consistently  with  the  intention  have  devoted  every  shilling  to  uses 
in  that  sense  charitable,  and  of  course  a  part  of  the  property.  But 
the  true  (jucstion  is,  whether,  if  upon  the  one  luuul  he  might  have 
devoted  the  wliole  to  purposes  in  this  sense  charitable,  he  might  not 
equally  according  to  tlic  intention  have  devoted  the  whole  to  purposes 
benevolent  and  li))eral,  and  yet  not  within  the  meaning  of  charitable 
purposes  as  this  court  construes  those  words ;  and,  if  according  to 
the  intention  it  was  competent  to  him  to  do  so,  I  do  not  approliond 
that  und(;r  any  authority  upon  such  words  the  court  could  have 
charged  him  with  maladministration,  if  he  had  applied  the  whole 
to  purposes,  which,  according  to  the  meaning  of  the  testator,  are  be- 
nevolent and  liberal,  though  not  acts  of  that  species  of  benevolcnca 

i  -2  Lev.  167. 


20J  MOUICE   V.   THE   BISHOP   OF   DUllIIAM.  [CIIAP.  1. 

and    liberality  which  this  court   in  the   construction  of   a  will  calla 
charitable  acts. 

The  question,  therefore,  resolves  itself  entirely  into  that ;  for  I  agree 
there  is  no  magic  in  words,  and  if  the  real  meaning  of  these  words  is 
charity  or  charitable  purposes,  according  to  the  technical  sense  in 
wliicli  those  words  are  used  in  this  court,  all  the  consequences  follow  ; 
if,  on  the  other  hand,  the  intention  was  to  describe  anything  beyond 
that,  then  the  testator  meant  to  repose  in  the  Bishop  a  discretion,  not 
to  apply  the  property  for  his  own  benefit,  but  that  would  enable  him 
to  apply  it  to  purposes  more  indefinite  than  those  to  which  we  must 
look,  considering  them  purposes  creating  a  trust ;  for,  if  there  is  as 
much  of  uidefinite  nature  in  the  purposes  intended  to  be  expressed,  as 
in  the  cases  to  which  I  first  alluded,  where  the  objects  are  too  uncer- 
tain to  make  recommendation  amount  to  trust  by  analogy,  the  trust  is 
as  ineffectual,  —  the  only  difference  being,  that  in  the  one  case  no 
trust  is  declared,  and  the  recommendation  fails,  the  objects  being  too 
indefinite  ;  in  the  other  the  testator  has  expressly  said  it  is  a  tru^Jt,  and 
the  trustee  consequently  takes,  not  for  his  own  benefit,  but  for  pur- 
poses not  sufficiently  defined  to  be  controlled  and  managed  by  this 
30urt.  Upon  these  words  much  criticism  may  be  used.  But  the 
question  is,  whether,  according  to  the  ordinary  sense,  not  the  sense 
of  the  passages  and  authors  alluded  to,  treating  upon  the  great  and 
extensive  sense  of  the  word  "  charity,"  in  the  Christian  religion,  this 
testatrix  meant  by  these  words  to  confine  the  defendant  to  such  acts 
of  chanty  or  charitable  purposes  as  this  court  would  have  enforced 
by  decree,  and  reference  to  a  master.  I  do  not  think  that  was  the  in- 
tention ;  and,  if  not,  the  intention  is  too  indefinite  to  create  a  trust. 
But  it  was  the  intention  to  create  a  trust,  and  the  object  being  too 
indefinite  has  failed.  The  consequence  of  law  is,  that  the  Bishop  takes 
the  property  upon  trust  to  dispose  of  it  as  the  law  will  dispose  of  it, 
not  for  his  own  benefit  or  any  purpose  this  court  can  effectuate.  I 
think,  therefore,  this  decree  is  right.  The  decree  was  affirmed} 

1  James  v.  Allen,  3  Mer.  17  (semh/e) ;  Ommaney  v.  Butcher,  T.  &  R.  260 ;  Fowler  v. 
Garlike,  1  Russ.  &  M.  232  ;  Williams  v.  Kershaw,  5  CI.  &  F.  Ill  (semble) ;  Harris  v. 
T)\x  Pasquier,  26  L.  T.  Rep.  689;  Leavers  v.  Clayton,  8  Ch.  D.  589;  Adye  v. 
Smith,  44  Conn.  60;  Taylor  r.  Keep,  2  Brartw.368  ;  Chamberlain  v.  Stearns,  111  Mass. 
267  ;  Nichols  v.  Allen,  130  Mass.  211  Accord. 

In  a  few  of  our  States  trusts  for  charity,  where  tlie  property  is  not  given  to  a  char- 
itable corporation  duly  authorized  to  administer  the  trust,  must  be  as  specific  in  regard 
to  the  beneficiary  as  private  trusts.  In  these  States,  too,  the  doctrine  of  Morice  v. 
Bishop  of  Durham  has  been  recognized,  with  the  lamentable  result  that  the  court 
will  not  permit  a  willing  trustee  to  carry  out  the  beneficent  purpose  of  the  testator. 
Hughes  V.  Dailey,  49  Conn.  34  ;  Gambel  v.  Trippe  (Md.,  1892),  23  Atl.  R.  461  ;  Meth- 
odist Church  V.  Clark,  41  Mich.  730;  Little  v.  Wilford,  31  Minn.  173;  Altvater  v. 
Russell  (Minn..  1892),  51  N.  W.  R.  629  ;  Holland  v.  Alcock,  108  N.  Y.  312 ;  O'Connor 
V.  Gifford,  117  N.  Y.  275;  Reed  v.  Williams,  125  N.  Y.  560;  Tilden  r.  Green,  oo  N.  Y. 
000 ;  Butler  v.  Green,  16  N.  Y.  Sup.  889;  Stonestreet  v.  Doyle,  75  Va.  356;  Bible  So- 
ciety V.  Pendleton,  7  W.  Va.  79. 

For  a  criticism  of  these  decisions,  see  5  Harv.  L.  Rev.  389-402.  —  Ed. 


SECT.  XL]  MUSSETT  V.   SINGLE.  201 


MUSSETT  V.   BINGLE. 

In  the  High  Court  of  Justice,  Chancery  Division,  before  Sir 
Charles  Hall,  V.  C,  May  10,  187G. 

[Reported  in  Weekly  Notes  (1876),  170.] 

In  this  cause,  which  now  came  on  upon  further  consideration,  the 
testator  had  by  his  will  directed  his  executors  to  apply  £300  in  erectinor 
a  monument  to  his  wife's  first  husband,  and  also  to  invest  £200  and 
apply  the  interest  in  keeping  up  the  monument.  It  was  admitted  that 
the  latter  direction  was  bad,i  and  the  question  argued  was  whether  the 
former  direction  was  good. 

The  trustees  were  ready  to  carry  out  the  testator's  wishes,  but  some 
of  the  beneficiaries  contended  that  the  first  direction  was  void  as  purely 
"  honorary." 

Dickinson,  Q.  C,  and  Cozens-Hardj/,  for  the  plaintiff. 

W.  Pearson,  Q.  C,  and  Bathurst,  for  the  executors. 

Badcock,  for  the  heir  at  law. 

W.  W.  Cooper  and  Kekewich,  for  other  persons  interested. 

The  Vice  Chancellor  said  that  the  direction  to  the  executors  was 
a  perfectly  good  one,  and  one  which  they  were  ready  to  perform,  and 
it  must  be  performed  accordingly.^ 

1  Lloyd  V.  Lloyd,  2  Sim.  n.  8.  25.5,  26.5 ;  Kickard  v.  Robson,  31  Beav.  244 ;  Fowler 
V.  Fowler,  33  Beav.  016  ;  Hoare  v.  Osborne,  L.  K.  1  Eq.  585 ;  Re  Kigley's  Trust,  36 
L.  J.  Ch.  147  ;  Yeap  Cheah  Neo  v.  Ong  Cheng  Xeo,  L.  R.  6  P.  C.  381,  396  ;  Fiske  v. 
Atty.  Gen.,  4  Eq.  521  ;  Hunter  v.  Bullock,  14  Eq.  45;  Dawson  v.  Small,  18  Y.k\.  114; 
Re  Williams,  5  Ch.  D.  735  ;  Re.  Birkett,  9  Ch.  D.  576;  Re  Vaughau,  33  Ch.  I).  187; 
Beresford  v.  Jervis,  11  Ir.  L.  T.  Rep.  128;  Re  Sinclair's  Trusts,  13  L.  R.  Ir.  150; 
John.son  v.  Ilolifidd,  79  Ala.  423  ;  Coit  v.  Com.stock,  51  Coun.  352;  Piper  v.  Moulton, 
72  Me.  155;  Churcii  Extension  v.  Smith,  50  Md.  304  ;  Dexter  i;.  Gardner,  7  All.  243 
[m>mble) ;  Giles  v.  Bo.ston  Soc'y,  10  All.  355,  357  (semble)  ;  Bates  v.  Bates,  134  Mass. 
110;  Dctwiller  i-.  Flartman,  37  X.  J.  E(|.  347  ;  Read  v.  Williams,  125  N.  Y.  560;  Re 
Fisher's  E.state,  8  N.  Y.  Supp.  10;  Trustees  v.  Gifford,  5  Pa.  Co.  R.  92;  Kelly  v. 
Nichols  (R.  L,  1891),  21  Atl.  R.  906  ;  Hornberger  v.  lioruberger,  12  lleisk.  035  ;  Fitet>. 
Bea.sley,  12  Lea,  328  Arcord. 

The  decisions  to  the  contrary  in  Gravenor  i'.  Ilallum,  Amb.  643,  Jones  v.  Mitclicll, 
1  S.  &  S.  200,  and  Willis  v.  lirown,  2  Jur.  987,  must  be  regarded  as  overruled.  A 
similar  decision  in  Jones  /,-.  Habersham,  107  U.  S.  174,  3  Woods  C.  C.  443,  470,  is  due 
to  a  statute. 

If  no  perpetuity  is  attempted,  o.  g.  where  property  is  given  in  trust  for  the  main- 
tenance of  a  monument  during  the  life  of  A.,  the  trustee  cannot  bo  prevented  from 
effectuating  the  donor's  purpo.se.     I/loyd  v.  Lloyd,  2  Sim.  n.  h.  255  (se.mble). 

The  rule  of  perpetuities  wns  ingenir)usly  evaded  in  /^pTyler  (1891),3  Ch.  253.  The 
testator  gave  a  fund  to  a  charitalile  organization,  with  directions  to  maintain  the  family 
vault.  If  the.so  directions  were  not  complied  with,  the  fund  was  to  go  to  another 
charity.     The  conditjoM  and  the  gift  over  were  held  valid.  —  En. 

"^  Ma.stcrH  »;.  Ma.iters,  1  P.  Wms.  423;  Mellick  v.  Asylum,  Jacob,  180  (armhh'); 
Limbrey  v.  Gurr,  6  Ma<l.  151  ;  Adnam  i;.  Colo,  6  Beav.  3.53  ;  Trimmer  v.  Danby,  25 
L.  J.  Ch.  424  ;  Gilmer  v.  Gilmer.  42  Ala.  9 ;  Johnson  v.  llolifield.  79  Ala.  423.  424 


202  GOTT  V.   NAIRNE.  [CIIAP.  I. 


GOTT  V.   NAIRNE. 

In  the  High  Court  of  Justice,  Chancery  Division,  before  Sir 
Charles  Hall,  V.  C,  May  17,   1876. 

[Reported  in  35  Law  Times  Reporter,  209.*| 

Demurrer.  William  Gott,  by  a  codicil  to  bis  will,  bequeatbed  to  R. 
Nairue  aiid  T.  W.  Nelson  tbe  sum  of  £12,000,  upon  trust  tbat  tbey  or 
tbe  survivor  of  tbem,  or  tbe  executors  or  administrators  of  such  sur- 
vivor, sbould,  as  soon  as  conveniently  might  be  after  the  testator's  de- 
cease, but  nevertheless  at  their  sole  and  absolute  discretion,  invest  the 
whole  or  such  part  as  they  should  think  fit  of  the  said  sum  of  £12,000 
in  the  purchase  of  an  advowson  and  right  of  patronage  of,  in,  and  to 
some  ecclesiastical  benefice  in  England,  with  the  right  of  next  presen- 
tation thereto.  And  the  testator  directed  that  until  his  son  John  Gott 
should  be  duly  presented  to  and  inducted  into  some  ecclesiastical  ben- 
efice which  should  produce  a  net  annual  income  of  £1,000  at  the  least 
(after  deducting  the  necessary  charges  and  outgoings  in  respect  there- 
of), or  should  previously  depart  this  life,  the  trustees  should  nominate 
to  the  said  ecclesiastical  benefice,  when  and  so  often  as  any  vacancy 
should  occur,  such  fit  and  proper  person  as  they  might  in  their  uncon- 
trolled discretion  select  or  choose  for  that  purpose.  Subject  as  afore- 
said, the  trustees  were  to  stand  possessed  of  the  advowson  and  right 
of  presentation  in  trust  for  John  Gott,  his  heirs  and  assigns,  The 
testator  also  directed  that  until  the  £12,000,  or  such  part  of  it  as  the 
trustees  should  think  fit,  had  been  invested  as  aforesaid,  they  should 
invest  it  in  specified  securities,  and  for  the  term  of  twenty-one  years 
from  the  date  of  his  death  accumulate  it  and  the  income  thereof,  by 
way  of  compound  interest.  And  he  declared  that  such  accumulated 
fund  should  be  applicable  to  the  purchase  of  the  advowson,  and  that 
the  interest  of  the  £12,000  and  the  accumulations  thereof,  together 
with  the  securities  in  which  they  might  be  invested  at  the  expiration 
of  the  twenty-one  years,  should,  so  far  as  they  had  not  been  laid  out 
in  the  purchase  of  the  advowson,  belong  and  be  paid  to  John  Gott,  his 
executors  or  administrators.  Provided,  however,  that  if  .John  Gott 
should  die  or  be  inducted  into  some  ecclesiastical  benefice  of  the  an- 
nual value  aforesaid  before  the  trustees  had  entered  into  any  contract 

(semble);  Cleland  v.  Waters,  19  Ga.  35,  54,  61  (semhle);  Detwiller  v.  Hartman,  37 
N.  J.  Eq.  347  (§40,000  monument) ;  Wood  v.  Vandenburgh,  6  Paige,  277 ;  Hagen- 
meyer  v.  Hanselman,  2  Dem.  87,  88  (semble)  ;  Re  Frazer,  92  N.  Y.  239  (repair  of 
cemetery  lot)  ;  Emans  v.  Hickman,  12  Hun,  425  (but  see  Re  Fisher's  Estate,  8  N.  Y. 
Supp.  10) ;  Bainbridge's  App.,  97  Pa.  482;  Fite  v.  Beasley,  12  Lea,  328;  Cannon  v. 
Apperson,  14  Lea,  553,  590. 

See  Mitford  v.  Reynolds,  1  Ph.  185,  16  Sim.  109,  I  Ph.  706;  Ford  v.  Ford  (Ky.),  16 
S.  W.  R.  451  ;  Bates  v.  Bates,  134  Mass.  110.  — Ed. 

1  8.  c.  3  Ch.  D.  278. —Ed. 


SECT.  XI.]  GOTT   V.   NAIRNE.  203 

for  the  purchase  of  an  advowson,  or  if  any  part  of  the  .;fl  2,000,  or  the 
accumulations  thereof,  should  remain  undisposed  of  after  completing 
such  contract,  then  the  £12,000  and  the  accumulations  thereof,  or  so 
much  of  the  same  as  should  remain  undisposed  of,  should  belong  and 
be  paid  to  John  Gott,  his  executors  or  administrators. 

The  testator  died  in  1863.  The  trustees  had  received  the  .£12,000 
and  invested  it  and  the  accumulations  as  directed,  but  no  purchase  of 
an  advowson  had  been  made. 

John  Gott,  the  son,  had  been  presented  to  the  vicarage  of  Leeds, 
and  it  was  in  dispute  between  the  trustees  and  himself  whether  or  not 
the  benefice  was  worth  a  clear  £1 ,000  a  year. 

The  action  was  brought  by  John  Gott  against  the  trustees. 

The  statement  of  claims  set  out  the  above  mentioned  facts,  but 
claimed  to  have  the  trust  fund  handed  over  to  the  plaintiff,  irrespective 
of  any  question  as  to  value  of  his  present  living. 

The  defendants  demurred  generally. 

G.  Hastings,  Q.  C,  and  Kekeivich,  for  the  demurrer.  The  defend- 
ants do  not  decline  to  carry  out  the  trust  created  by  this  will.  The 
plaintiff,  therefore,  cannot  claim  this  fund,  unless  he  can  show  that  he 
is  the  exclusive  object  of  the  trust.  But  it  is  clear  that  the  trustees 
may,  at  any  time  until  the  expiration  of  twenty-one  years  from  the 
testator's  death,  create  a  cestui  que  trust  by  purchasing  an  advowson 
and  presenting  some  person  other  than  the  plaintiff  to  it.  The  case  is 
like  that  of  Mussett  v.  Bingle,  where  a  bequest  to  erect  a  tombstone 
was  upheld,  the  trustees  being  willing  to  carry  it  out.  They  cited 
Harbin  v.  Masterman,^  and  Talbot  v.  Jevers.^ 

Dickinson,  Q.  C,  and  Ingle  Joyce,  for  the  plaintiff.  Both  the  fund 
and  the  advowson  belong  to  the  plaintiff,  subject  to  the  direction  to 
accumulate  the  interest  on  the  fund  and  the  purchase  of  and  presenta- 
tion to  an  advowson.  As  to  the  accumulation,  it  is  clear  that  where 
there  is  a  simple  direction  to  accumulate  a  fund  and  give  it  to  A. 
twenty-one  years  hence,  he,  if  of  full  age,  is  entitled  to  receive  it  at 
once.  As  to  the  purchase  of  the  advowson,  there  arc  a  series  of  cases 
of  which  Gosling  v.  Gosling  ^  is  the  most  imitortant,  showing  that  the 
legatee  in  such  a  case  is  entitled  to  have  the  fund  at  once,  unless  the 
testator  has  shown  a  clear  intention  that  some  one  shall  have  the  enjoy- 
ment of  it  in  the  mean  time.  Here  tlie  testator's  object  was  evidently 
to  benefit  the  plaintiff  alone,  it  being  clear  lh:it  there  was  no  otiier  per- 
son whom  he  specially  wished  to  benefit.  There  is  no  trust  for  any 
person  except  the  plaintiff,  no  person  who  now  or  at  any  time  can  call 
upon  the  trustees  to  purchase  a  living.  Harbin -u.  Masterman  '  is  in 
our  favor,  for  there  the  Vice  Chancellor  wonld  have  divided  the  fnnd 
amongst  the  residuary  legatees,  had  they  not  been  charities.  They 
cited  also  Thomson  *;.  Shakespeare  ;  *  Levvin  on  Trusts,  Gth  edit.  \)-i. 
G.  Jlastings,  Q.  C,  replied. 

1  25  L.  T.  Rep.  N.  8.  200;  L.  Rep.  12  Eq.  559. 

a  L.  Kep.  20  E^.  255.  »  John.  265.  ♦  John.  612;  1  DeG.  F.  &  J. 


204  BROWN   V.   BURDETT.  [CIIAP.  L 

The  Vice  CnAXCF.LLOR.  In  this  case  the  trustees  disclaim  any  ben- 
eficial interest  in  the  fund  in  question,  but  do  not  say  that  they  are 
unwilling  to  perform  the  trust.  They  do  not  look  upon  this  trust  as 
beneficial  to  themselves,  but  —  there  being  something  to  be  done,  per- 
fectly legal —  the  trustees  are  desirous  to  do  it.  Tlie  plaintiff,  then, 
not  having  shown  that  the  trusts  are  simply  and  solely  for  his  benefit, 
and  such  as  he  has  a  right  to  put  an  end  to,  the  demurrer  must  be 
allowed.  I  see  no  reason  why  the  trustees  should  not  be  allowed  to 
carry  out  this  trust.  And  it  is  to  be  observed,  that  they  are  to  nomi- 
nate to  the  benefice,  when  purchased,  "  when  and  so  often  as  any 
vacancy  shall  occur."  So  that  even  if  they  purchased  \xn  advowsou 
a.id  presented  the  plaintiff  himself  to  it,  that  would  not  at  once  put  an 
end  to  their  trust.  Moreover,  it  does  not  follow  that  the  whole  fund 
would  be  expended  in  purchasing  the  advowson.  The  demurrer 
must,  consequently,  be  allowed ;  but  the  plaintiff  will  have  leave  to 
amend,  and  thus  raise  the  question  of  the  net  value  of  his  present 
benefice. 


BROWN  V.   BURDETT. 
In  Chancery,  before  Bacon,  V.  C,  August  2,  1882. 

[Reported  in  Weekly  Notes  (1882),  134.'] 

Testatrix  by  a  codicil,  dated  the  26th  of  September,  1868,  to  her 
will  (dated  the  22d  of  May,  1868),  revoked  a  devise  of  a  messuage, 
garden,  orchard,  and  outbuildings  at  Gilmorton,  Leicestershire,  and 
gave  and  devised  the  same,  and  the  furniture  therein,  to  three  trustees 
upon  trust,  immediately  after  her  funeral,  and  upon  the  same  day,  to 
cause  the  windows  and  doors  of  each  room  in  the  house  (except  the 
kitchen,  back  kitchen,  middle  attic,  and  hall),  and  of  the  coach-house, 
to  be  well  and  effectually  bricked  up  from  the  outside,  with  every 
article  of  whatever  kind  that  might  be  therein  (including  testatrix's 
clock  1,  and  cause  the  same  to  be  repaired  and  renewed  as  occasion 
should  requh-e,  and  so  bricked  up  to  continue  for  the  term  of  twenty 
years  next  after  her  decease ;  and  subject  to  the  trusts  aforesaid,  upon 
trust,  to  place  in  and  remove  at  pleasure  some  respectable  married 
Couple  in  the  occupation  of  the  rooms  excepted  as  above,  and  allow 
them  to  live  therein,  and  occupy  the  same  place  and  premises  rent  free, 
in  consideration  of  their  taking  care  of  the  messuage  and  premises, 
and  particually  the  blockade  to  the  doors  and  windows,  and  to  see 
that  the  same  were  in  no  wise  tampered  or  meddled  with.  From  and 
after  the  expiration  of  the  term  of  twenty  years,  testatrix  devised  the 
house  and  premises  to  a  devisee  for  life,  with  remainder  to  another 

1  21  Ch.  D.  667,  8.  c— Ed. 


SECT.  XI.]  IX   RE   DEAN.  205 

person  in  fee.  By  another  codicil,  dated  the  2 2d  of  May,  1871,  testa- 
trix gave  a  number  of  other  minute  directions  as  to  how  the  outside 
and  inside  doors,  windows,  and  chimney  tops  were  to  be  blocked  up 
and  covered  in  ;  and  directed  that  the  married  couple  should  pay  a  nom- 
inal rent  of  one  halfpenny  a  week. 

Testatrix  died  on  the  16th  of  January,  1872. 

Millar^  Q.  C,  and  Brett^  for  the  plaintiff,  submitted  that  this  was  a 
lawful  limitation. 

Marten,  Q.  C,  and  S.  Hall,  for  a  defendant,  argued  that  the  devise 
as  to  the  twent}'  years'  term  was  inoperative  and  void. 

E.  K.  Karslake,  Q.  C,  3L  R.  Phillips,  Hemming,  Q.  C,  L.  Tate 
Lee,  and  A.  G.  Langley,  for  other  parties. 

The  Vice  Chancellor  held  that  there  was  an  intestacy  as  to  the 
term  of  twenty  years  in  the  house,  garden,  outbuildings,  and  fur- 
niture.^ 


In  Re  DEAN.     COOPER-DEAN  v.   STEVENS. 

In  the  High  Court  of  Justice,  Chancery  Division,  March  30, 

April  4,  9,  1889. 

[Reported  in  41  Chancenj  Division  Reports,  552.] 

William  Clapcott  Dean,  by  his  will  dated  the  12th  of  November, 
1887,  devised  all  liis  freehold  estates,  subject  to  and  charged  with  cer- 
tain annuities,  and  with  an  annuity  of  £750  thereinafter  mentioned  to 
his  trustees,  and  to  a  "term  of  fifty  years  thereinafter  granted  to  his 
trustees,  to  the  use  of  his  trustees,  for  the  terra  of  one  year  from  the  day 
preceding  his  deatli,  upon  certain  trusts,  and,  subject  thereto,  to  the 
use  of  Jaincs  Coop(!r  (the  plaintilf)  for  his  life,  with  remainder  to  the 
use  of  tlie  plainlilf's  fu'st  and  other  sons,  successively  in  tail  male,  with 
remainders  over.  The  will  continued  :  "I  give  to  my  trustees  my  eight 
horses  and  ponies  (excluding  cart  horses)  at  Littledown,  and  also  my' 
houmls  in  the  koniicls  there;.  And  I  ciiarge  my  said  freehold  estates 
hereinhefore  demised  and  devised,  in  priority  to  all  other  charges 
created  by  this  ray  will,  with  the  payment  to  my  trustees  for  the  term 
of  fifty  years  commencing  from  my  death,  if  any  of  the  said  horses  and 
hounds  shall  so  long  live,  of  an  annual  sum  of  £750.  And  I  declare 
that  my  trustees  shall  apply  the  said  annual  sinn  |)ayable  to  them  under 
this  clause  in  the  maintenanci;  of  the  said  horses  and  hounds  for  the 
time  being  living,  and  in  maintaining  the  stables,  kennels,  and  buildings 
now  inhabited  by  the  said  animals  in  such  condition  of  repair  as  my 
trustees  may  deem  fit ;  but  this  condition  shall  not  imply  any  obligation 

'  A  devise  to  a  ten.ini  in  tail  upon  trust  not  to  liar  the  entail  does  uot  create  a 
trust.     D.iwkins  v.  Perrhyu,  4  A\i\).  Caa.  51.  —  Ed. 


206  IN   RE  DEAN.  [CHAP.  1. 

on  ray  trustees  to  leave  the  said  stables,  kennels,  and  buildings  in  a 
state  of  repair  at  the  determination  of  the  said  term  ;  but  I  declare 
that  my  trustees  shall  not  be  bound  to  render  any  account  of  tlie  ai)pli- 
cation  or  expenditure  of  the  said  sum  of  £750,  and  any  part  tliereof 
remaining  unapplied  shall  be  dealt  with  by  them  at  their  sole  discre- 
tion." .  .   .^ 

The  testator  died  on  the  3d  of  December,  1887.  This  was  an 
originating  summons  by  James  Cooper,  who  had  assumed  the  name  of 
Dean,  as  plaintitf,  against  the  trustees  of  the  will,  asking  a  declaration 
that  the  gift  of  tlie  £750  a  year  to  the  defendants  for  the  purposes  men- 
tioned in  the  will  was  invalid,  or,  in  the  alternative,  a  declaration  that 
the  plaintiff  was  entitled  under  the  trusts  of  the  will  to  the  balance  from 
time  to  time  in  an}-  year,  commencing  from  tlie  testator's  death,  of  the 
£750,  after  making  provision  for  the  maintenance  of  the  testator's 
horses,  hounds,  stables,  kennels,  and  buildings  mentioned  in  his  will. 

Cozens- Hardy,  Q.  C,  and  Vernon  R.  Smith,  for  the  plaintiff. 

Everitt,  Q.  C,  and  Alexander,  for  the  trustees  of  the  will. 

North,  J.  The  first  question  is  as  to  the  validity  of  the  provision 
made  b}'  the  testator  in  favor  of  his  horses  and  dogs.  It  is  said  that  it 
is  not  valid  ;  because  (for  this  is  the  principal  ground  upon  which  it  is 
put)  neither  a  horse  nor  a  dog  could  enforce  the  trust ;  and  there  is  no 
person  who  could  enforce  it.  It  is  obviouslj^  not  a  charity,  because  it  is 
intended  for  the  benefit  of  the  particular  animals  mentioned,  and  not  for 
the  benefit  of  animals  generally,  and  it  is  quite  distinguishable  from  the 
gift  made  in  a  subsequent  part  of  the  will  to  the  Royal  Society  for  the 
Prevention  of  Crueltj-  to  Animals,  which  may  well  be  a  charitj'.  In 
mj'  opinion  this  provision  for  the  particular  horses  and  hounds  referred 
to  in  the  will  is  not,  in  anj'  sense,  a  charity,  and,  if  it  were,  of  course 
the  whole  gift  would  fail,  because  it  is  a  gift  of  an  annuity  arising  out 
of  land  alone.  But,  in  my  opinion,  as  it  is  not  a  charity,  there  is 
nothing  in  the  fact  that  the  annuit}'  arises  out  of  land  to  prevent  its 
being  a  good  gift. 

Then  it  is  said,  that  there  is  no  cestui  que  trust  who  can  enforce  the 
.trust,  and  that  the  Court  will  not  recognize  a  trust  unless  it  is  capable 
of  being  enforced  by  some  one.  I  do  not  assent  to  that  view.  There  is 
not  the  least  doubt  that  a  man  ma}',  if  he  pleases,  give  a  legac}'  to  trus- 
tees, upon  trust  to  apply  it  in  erecting  a  monument  to  himself,  either  in 
a  church  or  in  a  churchyard,  or  even  in  unconsecrated  ground,  and  I 
am  not  aware  that  such  a  trust  is  in  any  way  invalid,  although  it  is 
difficult  to  sa}'  who  would  be  the  cestui  que  trust  of  the  monument.  In 
the  same  way,  I  know  of  nothing  to  prevent  a  gift  of  a  sura  of  raoney  to 
trustees,  upon  trust  to  apply  it  for  the  repair  of  such  a  monument.  In 
my  opinion  such  a  trust  would  be  good,  although  the  testator  must  be 
careful  to  limit  the  time  for  which  it  is  to  last,  because,  as  it  is  not  a 
charitable  trust,  unless  it  is  to  come  to  an  end  within  the  limits  fixed  by 

1  The  statement  of  facts  has  been  curtailed,  and  the  arguments  of  counsel  are 
omitted.  —  Ed. 


SECT.  XI.]  IN   KE   DEAN.  207 

the  rule  against  perpetuities,  it  would  be  illegal.  But  a  trust  to  lay  out 
a  certain  sum  in  building  a  monument,  and  the  gift  of  another  sum  in 
trust  to  appl}'  the  same  to  keeping  that  monument  in  repair,  say  for 
ten  years,  is,  in  m}'  opinion,  a  perfectly  good  trust,  although  I  do  not 
see  who  could  ask  the  Court  to  enforce  it.  If  persons  beneflcialh' 
interested  in  the  estate  could  do  so,  then  the  present  plaintiff  can  do 
so ;  but  if  such  persons  could  not  enforce  the  trust,  still  it  cannot  be 
said  that  the  trust  must  fail  because  there  is  no  one  who  can  actively 
enforce  it. 

Is  there  then  anything  illegal  or  obnoxious  to  the  law  in  the  nature 
of  the  provision,  that  is,  in  the  fact  that  it  is  not  for  human  beings,  but 
for  horses  and  dogs?  It  is  clearly  settled  b}'  authorit}'  that  a  charity 
ma^'  be  established  for  the  benefit  of  horses  and  dogs,  and  therefore  the 
making  of  a  provision  for  horses  and  dogs,  which  is  not  a  chan'ity,  can- 
not of  itself  be  obnoxious  to  the  law,  provided,  of  course,  that  it  is  not 
to  last  for  too  long  a  period.  Then  there  is  what  I  consider  an  express 
authority  upon  this  point  in  Mitford  v.  Reynolds.' 

It  is  impossible  to  suppose  that,  from  the  beginning  to  the  end  of  these 
proceedings,  the  question  whether  the  gift  was  good  or  bad  was  never 
brought  to  the  attention  of  all  the  learned  judges  before  whom  the  case 
came.  I  do  not  Indeed  find  that  any  formal  discussion  took  place  upon 
it.  This  may  have  been  because  all  the  parties  agreed  upon  the  point, 
or  it  may  have  been  disposed  of  by  the  judge  in  the  course  of  the  argu- 
ment. But  it  is  impossible  to  suppose  that  the  matter  was  not  fully 
present  to  the  learned  counsel  who  argued  the  case,  or  to*  the  various 
judges  before  whom  it  came,  and  that  they  did  not  treat  the  gift  as 
valid.  The  point  must  have  been  raised,  because  the  fund  out  of  which 
it  was  to  take  effect  (if  it  were  good)  was  given  to  a  charitj'.  It  was 
the  duty  of  the  counsel  for  the  Governor  General  and  the  East  Indian 
Government  to  raise  the  point  on  behalf  of  the  charity,  if  there  was 
anything  in  it,  because  the  charity  would  have  taken  so  much  more,  if 
the  provision  for  the  horses  were  invalid.  That  being  so,  I  think  I 
may  treat  tliat  case  as  a  decision  b}'  ver^-  higli  authorit}'  that  such  a  pro- 
vision is  good,  and,  if  I  had  felt  any  doubt  about  the  point  myself,  I 
should  have  considered  that  authorit}'  as  settling  it,  so  far  as  I  am  con- 
cerned. There  is  notliing,  therefore,  in  my  opinion,  to  make  the 
provision  for  the  testator's  Iiors(;s  and  dogs  void. 

Tlien  the  next  question  is  this :  tlie  gift  is  of  an  annuity  of  £750, 
dunng  tiic  lives  and  life  (to  put  it  shortly)  of  the  horses  and  dogs,  and 
the  survivors  or  survivor  of  them,  and  of  course  a  time  would  arrive 
when  the  provision  which  the  testator  thought  rigiit  to  make  for  all  the 
animals  would  be  much  more  than  sudifictit  for  the  three  or  the  two  or 
the  one  wliich  miglit  survive.  The  annuity  is  to  cease  entirely  when  tlic 
last  survivor  dies,  and  it  is  o])vious  that  nothing  like  th.at  sum  could  or 
would   be   applied    for   the   ])eiie(it  of  th(;   animals   when   tliey  became 

1  The  learned  jtulgc  here  stated  at  leugth  tho  proceedingH  in  Mitford  v.  Hoy- 
noldH.  —  Ed. 


208  IN   RE  DEAN.  [CHAP.  I. 

greatly  reduced  in  number.  The  question  is,  wliether  the  annuity  was 
given  to  the  trustees  beneficially.  In  my  opinion  it  was  not  given  to 
them  beneficially.  They  are  from  lieginning  to  end  called  "the  trus- 
tees," and  beyond  all  question  the  principal  trust  to  be  discharged  by 
them  under  the  will  is  that  relating  to  the  horses  and  dogs.  There 
was,  no  doubt,  the  management  trust,  and  that  was  a  serious  trust 
while  it  lasted,  but  it  came  to  an  end  at  the  close  of  a  year  after 
the  testator's  death.  These  persons  are  described  throughout  as 
''trustees,"  and  the  annuity  is  given  to  them  as  trustees,  and  in  my 
opinion  the}-  took  it  only  as, trustees,  for  the  purpose  of  giving  effect 
to  the  trust  declared  of  it,  and  thej*  did  not  tliemselves  take  any  bene- 
ficial interest  in  it.  The  trust  is  for  payment  to  the  trustees.  Then 
there  is  a  declaration  that  the  trustees  shall  apply  the  annual  sum  pay- 
able to  them  in  the  maintenance  of  the  horses  and  dogs.  Thej"  have 
a  discretion  as  to  the  repair  of  the  buildings,  but  they  are  not  under 
any  obligation  to  leave  the  buildings  in  a  state  of  repair  at  the  end  of 
the  term.  Then  come  the  words  :  "  Any  part  thereof  remaining  unap- 
plied shall  be  dealt  with  by  them  at  their  sole  discretion."  If  the  tes- 
tator had  meant  them  to  take  beneficiallj^  it  would  have  been  very  easy 
to  say  that  "  any  surplus,  after  satisfying  the  aforesaid  purposes,  shall 
be  divided  among  them  for  their  own  use."  But  the  testator  does 
nothing  of  that  sort.  He  treats  them  as  having  a  joint  interest.  The 
annuity  is  to  be  applied  by  them,  it  is  to  be  subject  to  a  discretion 
to  be  exercised  b^-  them,  and,  in  my  opinion,  looking  at  the  whole 
of  the  will,  it  was  not  intended  to  vest  the  annuity  in  them  benefi- 
cially, but  only  to  give  them  a  discretion  with  respect  to  it  as  trustees. 
I  have  omitted  to  read  these  words,  which  form  part  of  the  sentence : 
"  I  declare  that  my  trustees  shall  not  be  bound  to  render  an}^  account 
of  the  appbcation  or  expenditure  of  the  said  sum  of  £750,  and  any 
part  thereof  remaining  unapplied  shall  be  dealt  with  by  them  at  their 
sole  discretion."  In  my  opinion  the  testator  intended  by  these- words 
to  give  them  complete  latitude  as  to  the  keeping  up  of  the  stables  and 
kennels  for  the  horses  and  dogs,  and  as  to  the  provision  to  be  made  for 
them  ;  in  other  words,  he  intended  that  it  should  not  be  open  to  any 
one  to  say  that  the  trustees  had  spent  more  than  was  reasonable  for 
the  purpose,  or  that  the  animals  could  have  been  verj^  well  maintained 
for  a  much  less  sum  than  had  been  actually  spent  upon  them,  and  that 
the  trustees  must  account  for  the  surplus  on  that  footing.  In  my  opin- 
ion he  intended  to  give  them  an  absolute  discretion  as  to  how  much  of 
the  annuity  was  to  be  applied  in  that  way.  His  object  was  to  make 
them  absolute  masters  of  the  application  of  the  mcne}'  for  the  benefit 
of  the  horses  and  dogs,  without  their  being  liable  to  account  for  having 
spent  more  than  a  reasonable  sum  upon  that  object. 

Then  the  final  words  of  the  will  throw  great  light  upon  the  testator's 
intention.  It  must  be  remembered  that  the  trust  is  to  come  to  an  end 
when  the  last  surviving  horse  or  dog  has  died.  It  is  clear,  therefore, 
that  he  was  considering  the  benefit  of  the  animals  which  are  the  object 


SECT.  XJ.]  REICHENBACH   V.   QUIN.  209 

of  the  trust,  and.  prima  facie,  it  was  not  his  intention  to  benefit  the 
trustees,  as  distinguished  from  the  animals  which  the}'  were  to  main- 
tain, and  the  final  words,  I  think,  show  this  ver}-  clearly.  It  is  clear 
that  he  was  not  leaving  to  the  trustees  a  discretion  as  to  the  waj'  in 
which  they  were  to  deal  with  the  animals,  but  he  was  himself  giving 
directions  as  to  what  was  to  be  done  about  them,  and  lastly,  if  a  time 
should  arrive  at  which  the  trustees  should  think  that  an}'  of  them 
should  be  killed,  he  gives  specific  directions  as  to  the  mode  b}-  which 
that  end  is  to  be  accomplished,  thus  showing  that  he  was  giving  direc- 
tions which  they  were  bound  to  follow,  and  not  merel}-  giving  them  an 
absolute  discretion  to  apply  the  money  to  those  purposes  or  to  any  other 
purposes  the}'  pleased.  Then,  coming  to  the  final  words  of  the  will, 
why  does  he  give  his  personal  estate  not  otherwise  disposed  of  to  the 
tenant  for  life  of  the  real  estate?  For  this  reason  :  "In  consideration 
of  the  maintenance  of  my  horses,  ponies,  and  hounds  being  a  charge 
upon  my  said  estates  as  aforesaid."  Not  in  consideration  of  there  be- 
ing this  charge  of  £750  a  year  on  the  estates,  but  in  consideration  of 
the  maintenance  of  the  animals  being  a  charge  upon  the  estates.  I 
have  no  doubt  he  was  expressing  his  intention  that  the  charge  was  to 
be  for  carrying  out  that  purpose,  and  that  he  did  not  intend  to  confer 
any  benefit  upon  the  trustees. 

I  think  it  is  not  necessary  to  comment  upon  the  cases  which  have 
been  cited  on  this  point,  for  there  is  no  conflict  between  them  ;  the 
only  question  is  within  which  class  of  them  the  present  case  falls.  In 
my  opinion,  upon  this  will,  especially  having  regard  to  the  last  clause, 
it  is  clear  that  the  testator  is  only  making  a  provision  for  the  mainte- 
nance of  the  animals,  and  that  he  does  not  intend  to  confer  any  benefit 
on  the  trustees. 

I  must,  therefore,  declare  that  the  trustees  do  not  take  the  surplus 
beneficially,  but,  upon  the  question  wiiether  the  surplus  belongs  to  the 
heir  at  law  or  to  the  devisee  of  the  real  estate,  by  reason  of  its  not 
being  raisable  out  of  the  estate,  I  say  nothing  in  the  absence  of  the 
heir  at  law.^ 


REICIIENRACII   v.    QUIN. 

In  titf,  ITion  Court  of  Justice,  Ciianckuy  Division,  Ireland,  be- 
fore THE  Rk;ht  Hon.  Hedges  E.  Ciiatterton,  V.  C,  Febru- 
ary :»,   10,   1888. 

[I{p.j>OTted  in  2\  Fmw  He  port. t,  Irish,  138] 

Jane  Cowley,  by  her  will,  dated  the  30tl>  October,  1881,  devised 
and  bequeathed  all   her  property  to  the  defendants,  upon  the  trusts 

'  Mitfonl  V.  Reynolds,  16  Sim.  105  ;  Fablo  v.  Brown,  2  Hill,  Cb.  378,  382  (semble) ; 
Skiiuo  V.  Walker,  3  Rich.  Eq.  202,  269  {semlde)  Accord.  —  Ed. 

U 


210  KEICIIENBACH  V.   QUIN.  [CIIAP.  I. 

therein  declared  ;  and,  after  giving  certain  other  directions  in  respect 
thereof,  proceeded  :  "  And  whatever  interest  1  Iiave  in  the  lauds  of 
Newcastle,  County  Dublin,  and  in  the  premises  in  Bridgefoot  Street, 
Dublin,  now  forming  a  portion  of  Darcy's  Brewery,  I  direct  that  the 
same  shall  be  sold  after  my  decease,  if  not  previously  disposed  of, 
and  out  of  the  amount  realized  thereby,  after  payment  of  the  ex- 
penses of  such  sale,  I  direct  my  trustees  to  apply  £100  towards  hav- 
ing masses  offered  up  in  public  in  Ireland  for  the  repose  of  my  soul 
and  the  souls  of  my  father,  mother,  brother,  and  sisters,  and  of  my 
servant  Anne  Hagarty,  and  apply  the  balance  towards  such  charitable 
purposes  in  Ireland  as  my  trustees  shall  select."  And  the  testatrix 
appointed  the  defendants  executors  of  her  said  will. 

The  testatrix  died  on  the  16th  June,  1882,  and  on  the  24th  July, 
1882,  probate  of  her  will  was  granted  to  the  defendants. 

Anne  Hagarty  survived  the  testatrix. 

An  action  was  brought  by  certain  legatees  under  the  said  will,  for 
the  purpose  of  having  the  trusts  thereof  carried  out  and  the  personal 
estate  of  the  testatrix  administered,  and  a  decree  was,  on  the  4th 
March,  1885,  made  to  that  effect. 

The  case  now  came  before  the  Court  on  further  consideration  of  the 
Chief  Clerk's  certificate,  and  a  question  arose  as  to  the  validity  of  the 
bequest  for  masses. 

Serjeant  Campion  (with  him  Mr.  Harty),  for  the  plaintiffs. 

Mr.  Beidey,  Q.  C.  (with  him  Mr.  J.  H.  Campbell).,  for  the  defendants. 

Mr.  Carson,  for  the  Attorney  General.' 

The  Vice  Chancellor.  I  am  of  opinion  that  there  is  no  attempt 
to  create  a  perpetuity  by  the  trust  in  reference  to  the  £100  for  masses. 
There  is  a  direction  in  the  will  that  the  lauds  of  Newcastle  and  the 
testatrix's  premises  in  Bridgefoot  Street  should  be  sold,  and  that  out 
of  the  amount  realized  her  trustees  should  apply  £100  towards  having 
masse?  offered  up  in  public  in  Ireland  for  the  repose  of  her  soul  and 
the  souls  of  the  other  persons  mentioned. 

I  do  not  consider  that  there  is  any  attempt  here  to  create  a  perpetu- 
ity, and  on  that  ground  —  and  I  wish  it  to  be  understood  that  on  that 
point  only  I  give  a  decision  —  I  shall  declare  that  the  gift  is  valid.'^ 

1  The  arguments  of  counsel  are  omitted.  —  Ed. 

2  Commissioners  v.  Wybrants,  7  Ir.  Eq.  34  n. ;  Read  v.  Hodgens,  7  Jr.  Eq.  16; 
Raftery  v.  Coleman,  Hamilton,  Cliarities,  (2d  ed.)  77,  L.  K.  21  Ir.  139  (cited)  ;  Brennan 
I'.  Brennan,  Ir.  R.  2  Eq.  321 ,  Dillon  v.  Reilly,  Ir.  R.  10  Eq.  152  (third  point)  ;  Atty. 
Gen.  V.  Delaney,  Ir.  R.  10  C.  L.  104;  Bradshaw  v.  Jackman,  21  L.  R.  Ir.  12;  Perry 
V.  Tuomey,  21  L.  R.  Ir.  480;  Ilagenmeycr  i;.  Hanselman,  2  Dem.  87  Accord. 

Boyle  V.  Boyle,  Ir.  R.  11  Eq.  4.33  Iscmhle)  ;  Holland  v.  Alcock,  108  N.  Y.  312; 
O'Conner  v.  Gifford,  117  N.  Y.  275,  280  (scmUe),  6  Dem.  71  Contra.  In  Holland  v. 
Alcock,  supra,  Rapallo,  J.,  on  behalf  of  the  Court,  said,  pp.  322-324  :  "  It  has  been 
argued  that  the  absence  of  a  beneficiary  entitled  to  enforce  the  trust  is  not  fatal  to 
its  existence  where  the  trustee  is  competent  and  willing  to  execute  it,  and  the  pur- 
pose is  lawful  and  definite ;  that  it  is  only  where  the  trustee  resists  the  enforcement  of 
the  trust,  that  the  question  of  the  existence  of  a  beneficiary  entitled  to  enforce  it 
arises.     I  have  not  found  any  case  in  which  this  question  has  been  adjudicated,  or  the 


SECT.  XI.]  EEICHEXBACII   V.    QUIN.  211 

point  has  been  made,  and  it  does  not  seem  to  be  presented  on  this  appeal.  The  case 
now  before  us  arises  on  a  demurrer  by  tlie  defendant  Alcock,  one  of  the  executors,  to 
the  complaint,  on  the  ground  that  it  shows  no  right  iu  the  plaintiffs.  The  complaint 
alleges  that  the  defendant  Alcock,  together  with  Frederick  Smyth,  were  named  as 
executors  iu  the  will ;  that  the  defendant  Alcock  did  not  qualify,  and  has  never  acted 
as  executor  or  as  trustee  of  the  alleged  trust  sought  to  be  created  by  the  third  clause, 
nor  participated  in  any  form  in  carrying  out  the  same,  but  that  his  co-executor  Fred- 
erick Smyth  has  taken  possession  of  the  whole  estate  as  such  executor  and  trustee. 
Smyth  is  not  a  party  to  this  appeal.  It  comes  up  on  the  demurrer  of  Alcock  alone, 
and  there  is  nothing  iu  the  complaint  to  show  that  he  is  willing  to  execute  the  trust, 
but  on  the  contrary  it  shows  that  he  has  in  no  manner  acted  or  qualified  himself  to 
act  therein.  But  aside  from  these  considerations,  I  do  not  think  that  the  validity  or 
invalidity  of  tlie  trust  can  depend  upon  the  will  of  the  trustee.  If  the  trust  is  valid 
he  can  be  compelled  to  execute  it ;  if  invalid  he  stands,  as  to  personal  property  undis- 
posed of  by  the  will,  as  trustee  for  the  next  of  kin,  and  the  equitable  interest  is  vested 
in  them  immediately  on  the  death  of  the  testator,  subject  only  to  the  payment  of  his 
debts  and  the  expenses  of  administration.  When  a  trust  is  attempted  to  be  created 
without  any  beneficiary  entitled  to  demand  its  enforcement,  the  trustee  would,  if  the 
trust  property  were  in  his  possession,  have  the  power  to  hold  it  to  his  own  use  without 
accountability  to  any  one  and  contrary  to  the  intention  of  th«  donor,  but  for  the  prin- 
ciple that  in  such  a  case  a  resulting  trust  attaches  in  favor  of  whoever  would  but  for 
the  alleged  trust  be  equitably  entitled  to  tlie  property.  This  equitable  title  cannot  on 
any  sound  principle  be  made  to  depend  upon  the  exercise  by  the  trustee  of  an  election 
whether  he  will  or  will  not  execute  the  alleged  trust.  In  such  a  case  there  is  no  trust 
in  the  sense  in  which  the  term  is  used  in  jurisprudence.  There  is  simply  an  honorary 
.  and  imperfect  obligation  to  carry  out  the  wishes  of  the  donor,  which  tlie  alleged 
trustee  cannot  be  compelled  to  perform,  and  which  he  has  no  right  to  perform  con- 
trary to  the  wishes  of  those  legally  or  equitably  entitled  to  the  property,  or  who  have 
succeeded  to  the  title  of  the  original  donor.  The  existence  of  a  valid  trust  capal)le 
of  enforcement  is  consequently  essential  to  enable  one  claiming  to  hold  as  trustee  to 
withhold  the  property  from  the  legal  representatives  of  the  alleged  donor.  A  merely 
nominal  trust,  in  the  performance  of  which  no  ascertainable  person  has  any  interest, 
and  which  is  to  be  performed  or  not  as  the  person  to  whom  the  money  is  given  thinks 
fit,  has  never  been  held  to  be  sufficient  for  that  purpose." 

A  conveyance  inter  vivos,  upon  trust  for  masses  for  the  son!  of  the  donor  is  valid  : 
Kehoe  v.  Kehoe  (Cook  Co.  C.  C,  111),  22  A.  L.  Keg.  n.  s.  6,56;  even  in  New  York, 
where  a  bequest  for  the  same  purpose  is  inoperative :  Gihnau  v.  McArdlo,  99 
N.  Y.  451. 

If  the  bequest  for  masses  contemplates  a  perpetuity,  it  is  of  course  void,  inasmuch 
as  it  is  not  a  charitable  bequest.  Dillon  v.  Reilly,  Ir.  K.  10  Eq.  1.52 ;  Beresford  v.  Jervis, 
11  Ir.  L.  T.  Rep.  128;  M'Court  v.  Burnett,  11  Ir.  L.  T.  Rep.  130;  Kehoe  v.  Wilson,  7 
L.  R.  Ir.  10;  Morrow  v.  M'Conville,  11  L.  R.  Ir.  236;  Dorrian  v.  Gilmoro,  \t)  L.  R.Ir. 
69.  In  Ma.s8a<;huaett3  and  Pennsylvania,  however,  such  a  bccjuest  is  a  charitable  be- 
quest. Sdioulcr,  Pet.,  134  Mass.  426;  Seibcrfs  App.,  18  W.  N.  (Pa.)  276;  Power'3 
Estate,  .5  W.  N.  (Pa.)  !)0  (reversed  on  another  ground  in  Rhymer's  App.,  93  Pa.  142) ; 
Dougherty's  Kstate,  .'>  W.  N.  (Pa.)  .'j.'JO  (xnnhlc). 

In  f;ngland  a  trust  for  masHes  is  void  as  a  superstitious  use.     Rex  v.  Portington, 
1  Salk.  Uii! ;  West  )).  Shuttleworth,  2  M.  &  K.  684 ;  Heath  v.  Chapman,  2  Drew.  417; 
I  Re  Blundcll,  .30  Beav.  360;  lie  Fleetwood,  15  Ch.  D.  596;   Elliott  v.  Elliott,  35  SoL 
J.  206.  —  Ed. 


-12  ROSS  V.  DUNCAN.  [CUAP.  L 


ROSS   AND  ROSS   V.   DUNCAN   and   Others. 

In  the  Superior  Court  of  Chancery,  Mississippi,  before  Robert 
J.  Buckner,  Chancellor,  1839. 

[Reported  in  Freeman,  Chancery,  587.] 

The  Chancellor.^  The  coraplaiuauts  bring  this  suit  as  the  heirs 
and  distributees  of  Margaret  A.  Keed,  deceased.  The  allegations  of 
the  bill,  so  far  as  the  demurrer  is  concerned,  are : 

That  Mrs.  Reed,  about  the  14th  June,  1838,  made  her  last  will  and 
testament,  appointing  the  defendants  her  executors,  to  whom  she  de- 
vised and  bequeathed  the  most  of  her  estate,  consisting  in  part  of  a 
large  number  of  negro  slaves ;  that  said  devises  and  bequests  were 
made  upon  the  secret  trust  and  confidence  that  the  negroes  should  be 
taken  by  the  defendants  as  the  executors  of  the  will  to  Liberia,  there 
to  remain  free,  &c.  A  letter  from  the  testatrix  of  even  date  with  the 
will  is  referred  to  in  the  bill,  which  it  is  alleged  is  declarative  and  ex- 
l  LfC^i^        pressive  of  the  secret  trust  aforesaid.     It  is  alleged  that  this  secret 


io^' 


fTj[t4i,$%rust  is  in  violation  of  the  laws  of  Mississippi,  and  was  intended  to 
r^^TZij-* evade  and  defraud  the  statute  which  prohibits  the  emancipation  of 
V04  "^  slaves  by  last  will  and  testament,  except  under  the  restrictions  therein 

Tj^jj^  P^'    enumerated.     The  complainants  pray  that  the  will  be  set  aside,  that 

. .A        the  estate  may  be  decreed  to  them,  &c.     To  this  bill  there  is  a  general 

■CA^A'*'^  demurrer,  which  at  once  presents  the  question  of  the  validity  of  the 
ft AJUA  ^  ^'^'  ^^  coupled  with  the  alleged  secret  trust.  If  the  trust  be  an  illegal 
^  one,  it  can  make  no  difference  whether  it  be  tacit  or  express  ;  the  same 
consequences  must  follow  it  in  either  character.  I  shall  therefore  elect 
to  consider  the  will  as  having  upon  its  face  a  devise  and  bequest  to 
the  defendants  upon  the  express  trust  that  the  negroes  therein  men- 
tioned should  be  taken  to  Liberia,  there  to  remain  free.  Several 
collateral  questions  were  made  on  the  argument,  all  of  which  it  is 
believed  resolve  themselves  into  this  plain  and  broad  proposition  :  Is 
a  will  made  within  this  State,  by  one  of  its  citizens,  in  which  negro 
slaves  are  bequeathed  upon  the  trust  that  they  shall  be  taken  to  Li- 
beria, on  the  coast  of  Africa,  there  to  remain,  void,  as  being  in  fraud 
and  violation  of  our  laws,  and  in  contravention  of  their  policy  upon 
the  subject  of  domestic  slavery? 

It  is  difficult  to  conceive  how  an  act  done  in  Liberia,  according  to 
its  laws,  should  involve  a  violation  of  those  of  this  State.  The  rule 
that  every  contract,  act,  or  agreement  is  to  be  governed  by  the  laws 
of  the  place  where  the  execution  or  peformance  is  to  take  place,  is  one 
of  universal  application.  The  execution  of  the  trust  in  this  case,  ac- 
cording to  the  allegations  of  the  bill,  is  to  take  place  in  Liberia.     The 

1  The  report  of  the  case  is  materially  abridged,  —  Ed. 


SECT.  XI.]  ROSS  V.  DUNCAX.  21 


o 


laws  of  that  place,  then,  according  to  the  rule,  must  decide  upon  its  le- 
gality. The  ground  was  taken,  that,  as  the  negroes,  for  whose  benefit 
the  trust  was  raised,  can  maintain  no  suit  in  our  courts  to  enforce 
it,  and  there  being  no  one  who  can  enforce  it,  the  trust,  it  is  insisted,  is 
thefefore  void.  The  conclusion  does  not  necessarily  follow  from  the 
premises.  A  trust  may  be  created  which  may  be  perfectly  consistent 
with  the  law,  and  yet  the  law  may  have  pointed  out  no  mode  of  en- 
forcement ;  still  it  would  not  mterpose  to  prevent  it,  but  would  leave 
its  execution  to  the  voluntary  action  of  the  trustee.  A  person  may 
convey  his  pi'operty  upon  what  trust  or  condition  he  pleases,  so  that  it 
be  not  against  law  ;  and  the  court  would  only  interfere  at  the  instance 
of  the  heirs  or  distributees  of  the  grantor  or  testator,  when  there  had 
been  a  failure  or  refusal  to  perform  the  condition  or  trust.  These  prin- 
ciples, I  think,  are  plainly  deducible  from  the  case  in  4  Wheaton,  35. 
The  demurrer  must  be  sustained  and  the  bill  dismissed.^ 

1  Affirmed  in  the  High  Court  of  Errors  and  Appeals,  6  Miss.  305.  See,  to  the 
same  effect,  Atwood  v.  Beck,  21  Ala.  590;  Abercrombie  v.  Abercrombie,  27  Ala.  489; 
Hooper  v.  Hooper,  32  Ala.  669;  Jordan  v.  Bradley,  Dudley  (Ga.),  170;  Vance  v. 
Crawford,  4  Ga.  445;  Cooper  v.  Blakey,  10  Ga.  263;  Cleland  v.  Waters,  19  Ga. 
35,  53-54,  61-62;  Sanders  v.  Ward,  25  Ga.  109;  Green  v.  Anderson,  38  Ga.  655; 
Leech  r.  Cooley,  14  Miss.  93;  Thompson  v.  NeM'lin,  6  Ired.  380,  8  Ired.  32;  Frazier  v. 
Frazier,  2  Hill,  Ch.  304  (but  in  1841  a  statute  was  passed  making  such  trusts  illegal 
as  against  public  policy  Finley  v.  Hunter,  2  Strob.  Eq.  208,  214;  Gordon  r.  Black- 
man,  1  Kich  Eq.  61)  ;  Henry  v.  Hogan,  4  Humph.  208  ;  Elder  v.  Elder,  4  Leigh,  252. 

In  Cleland  v.  Waters,  supra,  Starnes,  J.,  says,  p.  61  :  "  The  executor's  right  and 
duty  in  the  premises  are  prescribed  by  the  law  of  the  testator's  will.  Where  there 
is  no  municipal  law  forbidding  it,  the  testator  can  certainly  make  such  a  law  fur  him- 
self in  his  will,  and  the  same  reason  exists  why  the  executor  should  carry  it  into 
effect,  as  why  he  should  erect  a  monument  or  tombstone  of  specified  character  and 
coat,  if  80  directed  by  the  testator's  will.  It  will  not  be  disputed,  I  sup])ose,  that,  if 
such  directions  were  given  'by  a  testator,  it  would  be  the  duty  of  his  executor  to  carry 
them  into  effect  (especially  if  they  were  reasonable),  and  that  he  would  be  sustained 
l)y  a  court  of  justice  in  so  doing,  or  instructed  so  to  do  by  a  court  of  e(jMil_\-,  if  ho 
asked  instructions  on  this  head.  Yet,  it  could  not  lie  said  that  the  tombstone  had  any 
right  in  th<;  {jrcinises,  or,  perhajjs,  that  any  roniody  lay  against  the  executors  by  which 
tlie  erection  of  the  stone  could  be  enforced."  In  Hooper  v.  Hooper,  supra,  Kivers, 
C  J.  said,  p.  073 .  "  The  Court  of  Chancery  will  recognize  the  authonli/  of  the  ex- 
ecutor to  execute  the  tru.st,  and,  if  by  Ins  hill  he  sulnnits  the  administration  to  that 
court,  it  might  po.«so.'<s  tlie  power  to  enforce  its  execution,  as  a  condition  of  giving  its 
aid  and  relief  to  him.  But  the  slave  cannot  enforce  its  execution  by  suit.  .  .  .  The 
trust  is  one  of  that  class  which  may  be  valid,  and  yet  not  capable  of  being  enforced 
against  the  trustee  by  judicial  tribunals."  —  Ei>. 


Who  .m.\  V  ni;  a  Cestti  que  Tui'st.  —  Any  person  ca])ab](!  of  holding  projicrty  may 
be  the  beneficiary  in  a  trust.  In  other  words,  in  almost  all  jurisdictions  any  human 
being  may,  at  the  prcsfnt  day,  be  a  ri'sltn  f/uc  trust.  Neither  lunacy,  coverture,  nor 
infancy  is  a  ilisq>ialificati(jn.  There  were  formerly  two  exceptions  to  this  rule, 
namely,  aliens  and  slaves. 

( 1 )  Aliens.  An  alien  could  take,  but  could  not  hobl,  as  cestui  que  trust.  The  sover- 
eign became  at  once  entitled  to  the  licnefit  of  the  trust.  King  v.  San<ls,  Frcem.  Ch. 
120;  Godfrey,  Godb.  275;  Daubinez  v.  Morehead,  6  Taunt.  332;  Holland's  Case, 
Aleyn,  14,  15,  10,  Style  40,  s.  c. ;  Du  Ilourmclin  v.  Sheldon,  4  M.  &.  Cr.  525  (scmbte); 


214  KOSS  V.   DUNCAN.  [CHAP.  I. 

Founlriu  i'.  Gowdey,  3  M.  &  K.  383  ;  Barrow  i>.  Wadkin,  24  Beav.  1  ;  Sharp  v.  St. 
Sauvonr,  7  Ch.  343  (overruliug  Kittson  v  Stordy,  3  Sm.  &  G.  230)  ;  Duinoniol  y. 
Dumouccl,  13  Ir.  Kq.  R.  92;  Taylor  v.  Bcnliani,  5  How.  270  (semhle) ;  Leggctt  v. 
Dubois,  5  Paige,  114;  Austice  v.  Brown,  6  Taigc,  448  {semble) ;  Gilmour  v.  Kay,  2 
Ilayw.  (N.  Ca.)  108;  Atkin  v.  Kron,  5  Ired  207;  McCaw  v.  Galbraith,  7  Rich.  74; 
lluliliard  )".  Goodwill,  3  Leigh,  492. 

In  Escheator  v.  Smith,  4  McC.  452,  an  alien  cestui  que  trust  with  a  power  of  appoint- 
ment, having  executed  the  power  before  office  found,  the  appointment  was  adjudged 
valid. 

A  contract  with  one  as  trustee  for  an  alien  was  not  enforceable  at  all.  Brandon 
V.  Nesbitt,  6  T.  R.  23 ;  Brandon  v.  Curling,  4  East,  410. 

(2)  Slaves.  A  slave  could  not  be  a  cestui  que  trust.  Haywood  v.  Craven,  2  L.  Rep. 
(N.  Ca.)  .')57  ;  Cunningham  v.  Cunningham,  1  Tayl.  209;  Bynum  v.  Bostick,  4  Dess. 
266.  This  trust  was  void,  and  the  trustee  became  a  constructive  trustee  for  the  creator 
of  the  trust  or  his  representative.  American  Society  v.  Gantrell,  23  Ga.  448  (semhle)  ; 
Craig  V.  Beatty,  11  S.  Ca.  375;  Blakely  v.  Tisdale,  14  Rich  Eq.  90,  97  (disapproving 
of  Fable  v.  Brown,  2  Hill,  Ch.  378,  where  a  slave  was  assimilated  to  an  alien). 

In  North  Carolina,  if  a  slave  invested  his  earnings,  made  by  the  consent  of  his 
master,  in  an  obligation  running  to  a  trustee  for  the  slave,  the  trustee  could  of  course 
collect  the  obligation.  White  v.  Cline,  7  Jones,  (N.  Ca.)  174,  but  the  owner  of  the 
slave  could  not  compel  the  trustee  to  hold  the  obligation  for  him  (the  owner) ;  Lea 
V.  Brown,  5  Jones,  Eq.  379  ;  nor  to  pay  him  the  proceeds ;  Barker  v.  Swain,  4  Jones,  Eq. 
220.  In  Lattimore  v.  Dickson,  where  notes  were  made  payable  to  a  trustee  for  a  slave, 
the  trust  was  held  to  be  enforceable  by  the  slave  after  his  emancipation.  —  Ed. 

{ 


SECT.  Xn.]'  PIMBE'S  CASE.  215 


SECTION    XII. 
Tile  Trustee. 

PBIBE'S  CASE. 

Trinity  Term,  1585. 
[Reported  in  Moore,  196.  — 'Translated  in  Cruise,  Uses,  47.] 

Throckmorton  committed  high  treason,  18  Eliz,,  for  which  in  26 
Ehz.  he  was  attainted  by  trial.  Between  the  treason  and  the  attainder 
a  fine  was  leWed  to  him  by  Scudamore  of  certain  lands  to  the  use  of 
Scudamore  and  his  wife  (who  was  sister  to  Throckmorton),  and  of  the 
heirs  of  the  said  Scudamore.  Afterwards  Scudamore  and  his  wife 
bargained  and  sold  the  lands  to  Pimbe  for  money.  Upon  discovery  of 
the  treason  and  the  attainder  of  Throckmorton,  the  purchaser  Pimbe 
was  advised  by  Ploicden,  Popham,  and  many  others,  that  the  estate  of 
the  land  was  in  the  Queen,  because  the  Queen  is  entitled  to  all  the  lands 
that  traitors  had  at  the  time  of  the  treason,  or  after.  So  the  use  which 
was  declared  to  Scudamore  and  his  wife  upon  the  fine  was  void,  by  the 
relation  of  tlie  right  of  tlie  Queen  under  the  attainder,  and  the  Queen 
must  hold  the  laud,  discharged  of  the  use,  because  the  Crown  cannot 
be  seised  to  a  use.^ 

It  is  but  justice  to  mention  that,  the  case  being  represented  to  Queen 
Elizabeth,  she,  much  to  her  honor,  granted  the  land  to  the  cestui  que  use 
by  patent. 

'  Similarly,  the  King  could  not  make  a  conveyance  by  bargain  and  sale.  Atkins  v. 
Longvilo,  Cro.  .Jac.  .'JO. 

The  common  Btatoment  that  the  crown  or  a  state  cannot  be  a  trustee  means 
simply  that  the  c/stui  que  trust  cannot  file  a  hill  in  ciiuity  against  the  sovereign.  Dillon 
V.  Freine,  I'oph.  72;  Wike's  Ca.se,  Lane,  .')4,  2  Ifuil.  Ah.  780  [C]  1,  s.  c.  ;  I'aulett  v. 
Atty.  Gen.,  Ilardros,  46.5,  467;  Kildare  v.  Eustace,  1  Vcrn.  437,  439;  lieeve  v.  Atty. 
Gen.,  2  Atk.  22;j,  1  V'fs.  446  (cited),  s.  c. ;  I'enn  ?•.  Raltimore,  1  V^cs.  Sr.  444,453; 
Burgess  v.  Whejite.  1  Kdcn,  177,  2.'j.'') ;  Hodge  v.  Atty.  Gen.,  3  Y.  &  C.  342  ;  I'eojilo  i-. 
Ashhurner,  .5.5  Cal.  317  ;  Shoemaker  r.  Board,  36  Ind.  175;  Briggs  v.  Light  Boats,  11 
All.  157,  170-1 7;!;  rinsf)n  ».  Ivcy,  I  Yerg.  296,  332.  In  Fanners'  Co.  v.  The  People, 
1  Sandf.  ('h.  139,  the  difficulty  of  j)r()re<lure  scenis  to  have  liocn  overlooked. 

If  the  beneficiary  sues  by  petition,  the  sovereign  will,  as  a  matter  of  course,  recog- 
nize tho  jimt  claim  <>{  tho  petitioner.  Timbo's  Ca.ie,  sujirn  ;  Sconnden  v.  II;iwley, 
Coml).  172;  Briggs  v.  Light  Bouts,  11  All.  l.")7,  170-173.  Soc  Knsloinjee  r.  (inccn,  2 
Q.  B   Div.  69. 

The  validity  of  tho  trust  is  recogni/od  also  in  legal  firocpodings  in  which  the  sover- 
eign is  not  made  adeb-ndant.  Ivg. :  A  grantco  of  tho  sovereign  lakes  the  title  suliject  to 
the  trust.  Winona  v.  St.  I'aul  Co.,  26  .Minn.  1 79  ;  Pinson  v.  Ivey,  1  Yerg.  296 ;  Marshall 
V.  Lovela.ss,  Cam.  &  Nor.  217.  And  if  the  sovereign  obtains  tho  title  to  trust  jiroporty, 
his  title  will  be  barred  and  with  it  the  claim  of  tho  cestui  qur  trust  by  the  s.'inie  lapse  of 
time  wiiich  would  have  protected  tbe  adverse  possession  if  a  private  individual  had 
keen  trustee.     Miller  v.  State,  38  Ala.  000;  Molten  v.  Henderson,  62  Ala.  426.  —  Ku. 


216  ATTORNEY   GENER.\JL  V.   LAUDERFIELD.  [CHAP.  L 


KING  V.  BOYS  AND  ANOTHER. 

In  the Easter  Teum,  1569. 

[Reported  in  Dyer,  283  b.] 

One  T.  King  enfeoffed  one  Jasper  Boys,  an  alien,  and  Forcet  of 
Gray's  Inn,  to  tlie  use  of  himself  and  his  wife  in  tail,  remainder  to  his 
right  heirs.  Whether  the  Queen  be  entitled  to  a  moiety  of  the  land 
immediately,  or  not,  was  the  question.  And  it  seems  that  if  an  office 
be  found  of  it,  the  Queen  shall  have  the  moiety  by  her  prerogative  to 
her  own  use,  and  the  other  use  in  this  moiety  is  gone  forever."- 


THE  ATTORNEY  GENERAL  v.   LAUDERFIELD. 
In  Chancery,  before  Lord  Hardw^ick,  C,  Michaelmas  Term,  1743. 

[Reported  in  9  Modern  Reports,  286.2] 

Note.  In  this  case  the  Attorney  General  argued,  that  as  corporations 
could  not  be  seised  to  an  use  at  law,  no  more  could  they  be  trustees, 
but  should  have  the  lands  to  their  own  use,  divested  and  freed  from 
the  trust.* 

But  the  Chancellor  would  not  let  him  go  on,  nothing  being  clearer 
than  that  corporations  might  be  trustees.* 

1  Fish  V.  Klein,  2  Mer.  431  ;  Marshall  v.  Lovelass,  Cam.  &  Nor.  217  (semble) 
Accord. 

An  alien  grantee  upon  trust  acquired  title  defeasible  only  by  the  sovereign.  Com. 
Dig.  Alien,  C.  4 ;  Ferguson  v.  Franklin,  6  Munf.  305. 

The  alien's  disability  was  removed  in  England  by  St.  33  Vict.  c.  14,  §  2;  and  by 
similar  statutes  an  alien  may  at  the  present  day  in  almost  all  jurisdictions  hold  prop- 
erty as  freely  as  a  subject,  and  may  therefore  be  a  trustee.  In  In  re  Hill,  W.  N.  (1874), 
228,  the  court  appointed  an  alien  as  trustee  of  English  property  for  beneficiaries  in 
France.  —  Ed. 

2  3  Sw.  416,  s.  c.  —  Ed. 

8  Chudliegh's  Case,  1  Co.  122  a.  See,  accord,  Br.  Ab.  Feff  al  Use,  60 ;  Bury  v.  Boken- 
ham,  Dy.  8,  b ;  Bacon,  Uses,  57.  But  see,  contra,  Holland's  Case,  2  Leon.  122, 3  Leon. 
176,  8.  c.  The  reason  for  the  ancient  doctrine  is  tlius  quaintly  expressed  in  Popham, 
72  :  "Yet  every  feoffee  is  not  bound  although  he  hath  knowledge  of  the  confidence, 
as  an  Alien  Person,  Attaint,  and  the  like ;  nor  the  King,  he  shall  not  be  seised  to  an- 
other's use,  because  he  is  not  compellable  to  perform  the  confidence ;  nor  a  Corpora- 
tion, because  it  is  a  dead  body,  although  it  consist  of  natural  persons :  and  in  this  dead 
body  a  confidence  cannot  be  put,  but  in  bodies  naturall."  —  Ed. 

*  Green  v.  Rutherforth,  1  Ves.  462,  467 ;  Atty.  Gen.  v.  Whorwood,  1  Ves.  Jr. 
534,  .536;  Atty.  Gen.  v.  Governors,  2  Ves.  Jr.  41,  46;  Dummer  v.  Corporation, 
14  Ves.  245,  252;  Atty.  Gen.  v.  Cains  College,  2  Keen,  150,  165;  Evans  v.  Corpo- 
ration, 29  Beav.  144;  Vidal  v.  Girard,  2  How.  127,  187;  Miller  v.  Lerch,  1  Wall. 
Jr.  210;  Stone  v.  Bishop,  4  Cliff.  593  ;  First  Society  v.  Atwater,  23  Conn.  .34;  Phillips 
Academy  v.  King,  12  Mass.  546;  Webb  v.  Neal,  5  All.  575;  Commissioners  v.  Walker, 


SECT.  XII.]  JEVON   V.   BUSH.  217 

JEVON  V.   BUSH. 
In  Chancery,  before  Lord  Jeffreys,  C,  November  27,  1685. 

[Reported  in  1  Vernon,  342.] 

Lord  Bell  amount  lent  £600  to  one  Gardiner  on  a  recognizance  oi 
^1,000,  which  he  took  in  the  name  of  the  defendant  Bush,  and  intended 
it  as  a  provision  for  the  plaintiff,  his  infant  daughter,  then  but  two 
years  old ;  and  Bush  at  the  same  time  executed  a  declaration  of  the 
trust.  Gardiner  being  about  to  sell  his  estate,  and  the  purchaser  hav- 
ing notice  of  the  recognizance,  Bush  is  prevailed  upon  to  acknowledge 
satisfaction;  and  in  1657,  and  not  before,  the  plaintiff  had  notice  of 
this  declaration  of  trust,  and,  understanding  that  Bush  had  acknowl- 
edged satisfaction  on  this  recognizance,  brings  her  bill  to  be  relieved 
against  this  breach  of  trust. 

The  defendant  by  answer  insisted,  and  it  was  so  proved  in  the 
cause,  that  he  was  but  eighteen  years  old  when  he  made  this  decla- 
ration of  trust ;  and  insisted  likewise,  that  he  never  had  one  penny 
for  his  acknowledging  satisfaction  on  that  recognizance,  but  that 
Lord  Bellamount's  widow,  as  he  believes,  received  the  moneys  due 
thereon.^ 

The  counsel  for  the  defendant  insisted,  that  the  plaintiff  ought  to 
prove  some  fraud  in  the  trustee,  or  that  he  received  to  his  own  use 
part  of  the  money. 

LoKU  Chancellor.  The  proof  lies  on  the  defendant's  side ;  he 
ought  to  discharge  himself,  and  it  is  not  sufficient  for  him  to  say 
he  never  received  any  of  this  money  for  his  own  use :  there  is  no 
doubt  but  an  infant  may  be  a  trustee ;  '^  and  the  breach  of  trust  was 
committed  in  1654,  after  he  was  of  full  age;  and  therefore  decreed 
him  to  pay  the  principal  money,  with  damages  not  exceeding  £1,000, 
being  the  penalty  of  the  recognizance ;  and  cited  my  Lord  Hobart, 
I  jwlio  says  that  cestui  que  trust  in  an  action  of  the  case  against  his 
,C  I    trustee  shall  recover  for  a  breach  of  trust  in  damages. 

7  Miss.  143,  1R5;  Wado  v.  American  Society,  15  Miss.  663  ;  Chambers  v.  St.  Louis,  29 
Mo.  543  ;  Tni.stces  v.  I'eaalce,  15  N.  H.  317  (srmhie);  Re  Howe,  1  I'aigo,  214  ;  Sheldon 
V.  Cha].pftll,  47  Iliin,  59;  Columhia  Co.  v.  Kline,  Bright.  N.  P.  320;  Jir  parte  Greeu- 
ville,  7  Rich.  Eq.  471,  470,  483  ;  Ik-ll  Co.  v.  Aloxauder,  22  Tex.  350  Accord. 

The  court  may  ajijioint  a  cori)orati()n  a  tru.stoo.  Anon.,  7  Phila.  517.  But  see  Re 
r.rof,'(len,  W.  N.  (1H8H),  2W.  It  was  (iccidcd  in  In  re  FranklinV  E.st.  (Pa.  18;»2),  24 
At).  H.  626,  tliat  a  municipal  corporation  could  not  liecome  a  trustee  of  a  purely  pri- 
vate tru.st.     Hut  SCO  (ilouccst(!r  v.  Oshorn,  1  M.  L.  272,  285.  —  Ed. 

*  The  statement  of  facts  has  been  abridged.  —  Eo. 

2  Altli'ingli  an  infant  may  bo  a  trustee,  no  judicious  person  and  no  court  woulil  ap- 
point an  infant  as  trustee.  An  infant,  it  is  obvious,  has  not  llic  discretion  requisite  to 
the  due  administration  of  a  trust,  and  cannot  bo  held  accountable  for  its  maladminis- 
tion.  Pu.Hscrs  Ca.se,  5  Kep.  27  n  ;  Whitinoro  v.  Weld,  I  Vern.  328;  Ilindniarsh  v. 
Southgate,  3  Russ.  324 ;  in  wliich  ca-ses  it  was  adjudged  that  au  infant  executor  was 
Dot  liable  for  a  devastavit. 

There  was  formerly,  however,  no  mode  of  divesting  the  infant  trustee  of  his  title  to 


218  PEGGE  V.   SKYNNER.  [CIIAP. 


PEGGE  V.   SKYNNER  and  RICHARDSON. 
In  Chancery,  before  Lord  Thurlow,  C,  May  22,  1784. 

[Repoited  in  1  Cox,  Equity  Cases,  23.] 

Bill  for  specific  performance  of  an  agreement  for  a  lease  from  plain- 
tiff to  defendants.  It  was  objected  that  the  defendant  Richardson  liad 
since  become  incapable  of  doing  any  act  in  consequence  of  a  paralytic 
stroke.  It  was  ordered  that  the  defendant  Skynner  should  execute 
a  counterpart  of  a  lease,  and  also  the  defendant  Richardson,  when  he 
should  be  capable  of  so  doing. ^ 

Lord  Thurlow  refused  to  give  plaintiff  costs. 

the  trust  property.  An  equity  judge  could  make  no  other  decree  against  the  infant 
than  that  which  was  made  in  Anonymous,  3  P.  Wms.  389,  u.  [A] ;  namely,  "  to  convey 
when  of  age,  unless  he  should  show  cause  to  the  contrary  witliin  six  months  after  he 
should  come  of  age."  See  also  Perry  v.  Perry,  65  Me.  399 ;  Whitney  v.  Stearns,  1 1 
Met.  319  ;  and  compare  King  v.  Bellord,  1  H.  &  M.  343. 

The  first  remedial  statute  was  passed  in  1708,  St.  7  Anne,  c.  19,  which  was  followed 
by  St.  6  Geo.  IV.  c.  74,  §  2  But  these  statutes  applied  only  to  bare,  expre.'is  trustees. 
Ex  parte  Vernon,  2  P.  Wms.  549  ;  Goodwin  v.  Lister,  3  P.  Wms.  387  ;  Hawkins  v. 
Obeer,  2  Ves.  559;  Atty.  Gen.  v.  Pomfret,  2  Cox,  Eq  221 ;  Ex  parte  Beddam,  1  Rose, 
310,  Bullock  »;.  Bullock,  1  J,  &  W.  603;  King  v.  Turner,  2  Sim.  549,  Re  Moody, 
Tamlyn,  4.  But  by  the  Trustee  Act  of  1850,  12  &  13  Vict.  c.  74,  §  7,  the  title  of  an 
infant  trustee  may  by  the  Court  of  Chancery  be  vested  in  a  suitable  person,  whether 
the  trust  be  express  or  constructive,  and  whether  tiie  trustee  is  a  bare  trustee  or  has  a 
beneficial  interest.  There  are  similar  statutes  in  this  country.  Hawthorn  v.  Root,  6 
Bush,  501 ;  Bridges  v.  Bidwell,  20  Neb.  185 ;  Re  Pollen,  14  N.  J.  Eq.  147  ;  Ownes  v. 
Ownes,  23  N.  J.  Eq.  60 ,  Livingston  v.  Livingston,  2  Johns.  Ch.  537  ;  Thompison  v. 
Dulles,  5  Rich.  Eq.  370.  Such  statutes  have  of  course  no  extra-territorial  force. 
Sutphen  v.  Fowler,  9  Paige,  280. 

Independently  of  these  statutes,  if  an  infant  trustee  actually  conveyed  to  the  cestui 
que  trust,  or  according  to  his  directions,  he  could  not,  on  attaining  majority,  disaffirm 

the  conveyance.     v.  Haudcock,  17  Ves.  384  ,  Elliott  v.  Horn,  10  Ala.  348  ;  Starr 

V.  Wright,  20  Oh.  St.  97 ;  Thompson  v.  Dulles,  5  Rich.  Eq.  370. 

Although,  as  we  have  seen,  an  infant  was  not  lialile  for  a  breach  of  trust,  he  was 
chargeable  ex  delicto  as  a  constructive  trustee  for  any  property  acquired  by  his  miscon- 
duct. Anon.,  2  Eq.  Ab.  489,  n.  (a),  1  DeG.  &  Sm.  1 18,  n. ;  Clare  v.  Watts,  9  Vin.  Ab. 
415  ;  Anon.,  2  Eden,  71,  72 ;  Overton  v.  Banister,  3  Hare,  503 ;  Lempriere  v.  Large,  12 
Ch.  D.  675.  —  Ed. 

*  Owen  V.  Davies,  1  Ves.  82 ;  Hall  v.  Warren,  9  Ves.  605  Accord. 

Apart  from  statutes,  the  only  decree  that  could  be  made  against  a  trustee  non  com- 
pos mentis  wa.s  in  the  form  indicated  in  the  principal  case.  The  difficulty  was  removed 
in  England  in  1731,  in  the  case  of  express,  bare  trustees,  by  St.  4  Geo.  II.  c.  10,  and 
St.  6  Geo.  IV.  c.  74,  §  3.  But  the  old  rule  continued  as  to  constructive  trusts  and 
trusts  in  which  the  trustee  had  an  interest.  Ex  parte  Tutin,  3  V.  &  B.  149  ;  Ex  parte 
Currie,  1  J.  &  W.  642.  But  by  the  Trustee  Act  of  1850,  §  3,  the  Equity  judges  were 
authorized  to  vest  the  title  of  a  lunatic  trustee  in  a  suitable  person,  whether  the  trust 
was  constructive  or  express,  and  whether  the  trustee  was  a  bare  trustee  or  beneficially 
interested.  See  also  the  Lunacy  Act  of  1890,  §§  135,  136.  There  are  similar  statutes 
in  this  country.     Re  Wadsworth,  2  Barb.  Ch.  281  ;  Swartout  v.  Burr,  1  Barb.  495. 

A  lunatic  trustee  is,  of  course,  not  liable  for  a  breach  of  trust.  —  Ed. 


SECT.  XII.]  STILL  V.   EUBY-  219 


STILL  AND  WIFE  V.   RUBY  and   OTHERS. 

In  the  Supreme  Coukt,  Pennsylvania,  January  Term,  1860. 

[Reported  in  35  Pennsylvania  Reports,  373.] 

Error  to  the  District  Court  of  Philadelphia. 

This  was  a  scire  facias  by  Mary  Ruby  and  John  Ruckstool  and  Eliza 
A.  Ruckstool,  which  Mary  Ruby  and  Eliza  A.  Ruckstool  were  trustees 
of  The  Heart  and  Hand  Female  Beneficial  Society  of  Philadelphia, 
against  Charles  Still  and  Sarah  K,,  his  wife,  on  a  mortgage  given  by 
the  defendants  to  the  female  plaintiffs,  as  trustees,  on  the  19th  Feb- 
ruary, 1856,  to  secure  the  payment  of  $500  and  interest,  in  one  year 
from  the  date  thereof. 

The  following  aflidavit  of  defence  was  filed  by  Charles  Still,  one  of 
the  defendants :  — 

"  Charles  Still,  one  of  the  above-named  defendants,  and  on  behalf 
of  his  co-defendant,  being  duly  sworn,  &c.,  saith :  That  they  have  a 
just  and  legal  defence  to  the  whole  of  plaintiffs'  claim  in  the  above 
case,  the  nature  and  character  of  which  is  as  follows :  That  the  said 
Eliza  A.  Ruckstool,  one  of  the  above-named  plaintiffs,  before  and  at 
the  time  of  the  commencement  of  this  suit,  and  at  the  time  of  the  exe- 
cution of  the  mortgage  on  which  said  suit  is  brought,  was  and  still  is 
married  to  one  .John  Ruckstool,  then  and  yet  her  husband,  who  is  still 
living,  to  wit,  at  Pliiladelphia  aforesaid,  m  the  count}^  aforesaid  ;  and 
this  deponent  for  himself  and  his  co-defendant  further  says,  that  they 
have  not,  nor  has  either  of  them,  any  knowledge  of  John  Ruckstool 
joined  as  a  party  plaintiff  in  this  suit,  except  as  the  reputed  husband 
of  the  said  Eliza  A.  Ruckstool  —  his  name  does  not  appear  in  the 
mortgage  on  which  this  suit  is  brought  —  nor  have  this  deponent  and 
his  co-defendant,  or  has  ettiier  of  them,  at  any  time  had  any  trans- 
actions of  business  or  otherwise  with  him.  All  of  which  the  deponent 
expects  to  be  able  to  prove  on  the  trial  of  the  case." 

The  court  below,  on  motion  of  the  i)Iaintiffs'  counsel,  gave  judgment 
for  want  of  a  sufHcient  affidavit  of  defence,  which  was  here  assigned 
for  error. 

J.  M.  Arundel,  for  the  {)laintiff  in  error. 

Brinkli  and  B.  A.  Mitchell^  for  the  defendants  in  error. ^ 

The  opinion  of  the  court  was  delivered  by 

WooDWAT!!),  .T.  —  Tlic  affidavit  disclosed  no  defence  whatever. 
Mrs.  Ruckstool,  as  apj)cared  on  the  face  of  the  mortg.-igc,  was  only 
trustee  for  The  Heart  and  Hand  Female  Beneficial  Society,  in  whom 
the  beneficial  interest  of  the  mortgage  was  vested.  Fem.es  covert,  like 
infants,  lunatics,  and  others  non  sni  juris,  maybe  trustees,  subject,  of 
course,  to  their  legal  incapacity  to  deal  with  the  estate  vested  in  them. 

1  The  argumcntB  of  counsel  are  omitted.  —  Ed. 


220  IN  RE   C.VMrBELL's   TRUST.  [CHAP.  I. 

Hill  on  Trustees,  49.  The  incapacity  of  Mrs.  Rnckstool  to  sne  in  her 
own  name  was  obviated  by  her  husband  joining  with  her.  The  mort- 
gagors must  pay  the  money  as  they  agreed  to  do. 

The  judgment  is  affirmed.^ 


In  re  CAMPBELL'S   TRUST. 
In  Chancery,  before  Sir  John  Rojhlly,  M.  R.,  June  4,  1862. 

[Reported  in  31  Beavan,  176.] 

This  was  a  petition  to  appoint  two  new  trustees.  One  of  the  per- 
sons proposed  was  a  feme  sole,  but  who  was,  in  all  other  respects, 
imexceptionable. 

Ml'.  Cutler  in  support  of  the  petition. 

The  Master  of  the  Rolls  doubted  whether  the  court  ever  ap- 

1  A  married  woman  may  be  a  trustee.  King  v  Denison,  1  V.  &  B.  277 ;  Gridley 
V.  Wynant,  23  How.  500 ;  Harden  v  Darwin,  66  Ala.  55  ;  Milner  v.  Freeman,  40  Ark. 
62  ;  Cotton  v.  Wood,  25  Iowa,  43 ;  Springer  v.  Berry,  47  Me  330,  338 ;  Wilson  v. 
Beauchamp,  44  Miss.  556 ;  Barrier  v.  Barrier,  58  Mo.  222  ;  Seibold  v.  Christman,  7 
Mo.  Ap.  254;  Sawyer's  App.,  16  N.  H.  459,  Persons  v.  Persons,  25  N.  J.  Eq.  250; 
Parker  v.  Nevitt,  18  Oreg.  274;  Bean  v.  Sanford,  9  Rich  Eq.  423,  425;  Smith  v. 
Strahan,  16  Tex.  314  ;  Wallace  v.  Bowen,  28  Vt.  638.  In  Milbank  v  Crane,  25  How. 
Pr.  193,  a  married  woman  was  appointed  a  trustee  by  the  court. 

In  the  absence  of  legislation,  a  married  woman  who  is  a  trustee  cannot  convey  the 
title  to  the  trust  property  any  more  freely  than  a  married  woman  holding  in  her  own 
right.  Co.  Lit.  1 1 2  a,  Hargreave's  note  6  ;  Baniel  y.  Uhley,  W.  Jones,  137,  McNeillie 
V.  Acton,  17  Jur.  1041,  2  Eq.  Eep.  21,  s.  c. ,  1  Fonbl.  Tr.  Eq.  92  ;  Bundas  v.  Biddle,  2 
Barr,  160.  The  husband  must  also  join  in  the  receipt  for  purchase  money.  Brum 
mond  V.  Tracy,  Johns.  608 ;  Kingsman  v.  Kingsman,  6  Q.  B,  Biv.  122,  128;  and  must 
likewise  be  co-plaintiff  or  co-defendant  with  her  in  legal  proceedings.  People  v.  Web- 
ster, 10  Wend.  554;  Kingsman  v.  Kingsman,  6  Q.  B.  Biv.  122.  Re  Bocwra,  29  Ch, 
B.  693. 

By  St.  3  &  4  Wm.  IV.  c.  74,  §  91,  if  there  was  an  incapacity  of  the  husband  to  join 
in  the  conveyance,  the  wife  might  convey  alone  on  application  to  the  Court  of  Common 
Pleas.  Re  Mirfin,  4  M.  &  G.  635 ;  Re  Caine,  10  Q.  B.  B.  284.  By  37  &  38  Vict. 
c.  78,  §  6,  a  married  woman  who  is  a  bare  trustee  of  freeholds,  or  copyholds,  may  convey 
as  freely  as  a  feme  sole ;  and  by  45  &  46  Vict,  c  75,  the  same  power  was  conferred  with 
regard  to  annuities,  bank  deposits,  and  corporate  shares.  In  this  country,  almost 
universally,  a  feme  covert  trustee  is  independent  of  her  husband  in  her  dealings  with 
trust  property.  See,  for  example,  Claussen  v.  La  Franz,  1  Iowa,  226.  Formerly  a 
married  woman  trustee  could  not  bind  herself  by  any  contracts  relating  to  the  trust 
property.  Avery  v.  Griffin,  6  Eq.  606.  And  the  liability  for  any  breach  of  tru.st  fell 
not  upon  her,  but  upon  her  husband.  Smith  v.  Smith,  21  Beav.  385  ;  Wainford  v. 
Heyl,  20  Eq.  321  ;  Re  Smith,  48  L.  J.  Ch.  205  ;  Bahin  v.  Hughes,  31  Ch.  Biv.  390. 
By  St.  45  &  46  Vict,  c,  75,  §§  1,  18,  24,  the  husband  is  no  longer  liable  for  his  wife's 
breaches  of  trust. 

The  coverture  of  a  trustee  was  thought  to  be  a  sufficient  ground  for  removal  in  Lake 
V.  Be  Lambert,  4  Ves.  592,  a.  See  also  Taylor  v.  Allen,  2  Atk.  213;  Re  Kaye,  1  Ch. 
Ap.  387.  — Ed. 


SECT.  Xn.]  WILDING   V.  BOLDER.  221 

pointed  a  feme  sole  to  be  a  trustee.     He  said  he  would  consult  the 
other  judges. 

The  Master  of  the  Rolls,  having  done  so,  and  the  affidavits  being 
satisfactory,  made  the  order  as  asked.^ 


Re  HATTATT'S  TRUSTS. 
In  Chancery,  before  Sir  John  Romilly,  M.  R.,  January  22,  1870. 

[Reported  in  18  Weekly  Reporter,  416] 

This  was  a  petition  for  the  appointment  of  a  new  trustee. 

The  proposed  trustee  was  a  Mr.  Knightly,  who  was  the  husband  of 
one  of  the  cestuis  que  trustent. 

The  cestuis  que  trustent  were  all  sui  juris,  and  there  were  the  usual 
affidavits  of  the  fitness  of  the  proposed  trustee. 

SjMed,  for  the  petitioner,  mentioned  the  matter  to  the  Court. 

Lord  Romilly,  M.  R.,  said  he  would  make  the  order,  but  the  new 
trustee  must  undertake  to  apply  immediately  to  the  Court  for  the  ap- 
pointment of  a  new  trustee  in  case  of  his  becoming  a  sole  trustee.'^ 


WILDING  V.   BOLDER. 
In  Chancery,  before  Sir  John  Romilly,  M.R.,  December,  22,  1855. 

[Reported  m  21  Beavan,  222.] 

Mr.  Cairns  appeared  in  support  of  a  petition  to  appoint  new  trus- 
tees, one  of  whom  was  related  to  the  cestuis  que  trust. 

The  Ma.ster  of  the  Rolls.  I  cannot  depart  from  the  rule  I  have 
adopted  of  not  appointing  a  near  relative  a  trustee,  unless  I  fiud  it  ab- 

1  Re  Berkley,  9  Ch.  720;  Ex  parte  Black,  1  Bland,  142  n.  (f)  ;  Gibson's  Case,  I 
Bland,  \W  Arrord. 

Brook  V.  Brook,  1  Bcav.  170  Contra.  —  En 

»  Re  Parrot,  W.  N.  (1881)  158,  30  W.  R.  97  9.  c.  Accord.  See  also  Re  Davis,  12 
Eq.  214  ;  Re  JosHon,  L«!win,  TniHtH  (Hth  oil.),  41  n.  (h). 

But  tho  court  refuHcd  to  appoint  a  liuwhiind  as  trustee  in  Re  Lowdoll,  Lewiu,  Trusts 
(8th  ed.),  41  n.  (h) ;  Ex  parte  Hunter,  liico  Eq.  293  ;  Dean  v.  Lanford,  9  Rich.  Eq.  423. 
In  Boaz  i).  Houz,  36  Ala.  334,  a  hu.shand  was  removed  from  his  trusteeship  because  ho 
had  permanently  atiandonf^il  his  wife. 

A  cestui  que  truxt,  having  the  power  of  naming  a  trustee  in  case  of  a  vacancy,  may 
appoint  her  hu.sbanfl.     Twec-ily  v.  IJrqnliart,  30  Ga.  446. 

It  pocH  without  saying  that  a  husband  may  act  as  trustee  if  appointed  by  the  creator 
of  the  trust.  —  Ei>. 


222  EX   PARTE  CONYBEAUE'S    SETTLEMENT.  [CIIAP.  L 

solutcly  impossible  to  get  some  one  unconnected  with  the  family  to  un- 
dertake that  cilice. 

1  have  always  observed,  that  the  worst  breaches  of  trust  are  com- 
mitted by  relatives,  who  are  unable  to  resist  the  importunities  of  their 
cestuis  que  trusty  when  they  are  nearly  related  to  them.^ 


Ex  Parte  CONYBEARE'S   SETTLEMENT. 

In  Chancery,  before  Sir  G.  J.  Turner  and  Sir  J.  L.  Knight 
Bruce,  L.  JJ.,  June  24,  1853. 

[Reported  in  1  Weeklij  Reporter,  458.] 

Oontbeare  moved  for  the  appointment  as  trustee  of  one  of  the  ces- 
tui  que  trusts  of  an  estate  in  the  place  of  a  trustee  incapacitated  from 
acting,  in  consequence  of  insanity.  All  parties  were  desirous  that  the 
appointment  of  the  gentleman  proposed  should  be  made,  and  there  were 
special  circumstances  in  the  case  not  necessary  to  be  referred  to  for  the 
purposes  of  the  report.  The  Master  of  the  Rolls  had  declined  to  make 
the  order  asked,  on  the  ground  that  the  Court  ought  not  to  appoint  a 
cestui  que  trust  as  the  trustee,  even  though  there  was  not  any  other 
objection  to  his  appointment. 

Tltjner,  L.  J.  Under  ordinary  circumstances,  no  doubt,  the  Court 
will  not  appoint  a  trustee  who  is  also  one  of  the  cestui  que  trusts ;  but 
the  rule  is  not  imperative,  and  when  there  are  special  circumstances, 
the  Court  will  exercise  its  discretion  in  judging  whether  the  case  is 
one  in  which  the  rule  may  be  departed  from.  Here  I  think,  under  the 
special  circumstances,  we  may  make  the  appointment  asked. '^ 

Knight  Bruce,  L.  J.,  concurred. 

1  See  Parker  v.  Moore,  25  N.  J.  Eq.  228,  240. 

Relationship  between  proposed  trustees  is  not  a  fatal  objection  to  their  appointment. 
Re  Lancaster  Charities,  9  W.  R.  192.  But  see,  as  to  trusts  under  the  Settled  Land  Act, 
Re  Knowles,  27  Ch.  D.  707;  Re  Norris,  27  Ch.  D.  333;  Re  Brintnall,  W.  N.  (1872), 
77. —  Ed. 

2  Ex  parte  Glutton,  17  Jur.  988;  Re  Clissold,  10  L.  T.  Rep.  642;  Tempest  v.  Ca- 
moys,  58  L.  T.  Rep.  221 ;  Custis's  Trust,  5  Ir.  R.  Eq.  429 ;  Milbank  v.  Crane,  25  How. 
Pr."l93  ;  Kenderdine's  Est.,  12  W.  N.  (Pa.)  423  Accord. 

It  is  customary  now  to  require  an  undertaking  that,  whenever  a  beneficiary  trustee 
becomes  sole  trustee,  he  shall  immediately  take  steps  for  the  appointment  of  a  co-trustee, 
as  in  Re  Burgess,  W.  N.  (1877),  87  ;  Re  Lightbody,  52  L.  T.  Rep.  40.  Compare  Forster 
p.  Abraham,  17  Eq.  351. 

The  creator  of  the  trust  may  make  a  cestui  que  trust  one  of  the  trustees.  This  waa 
the  case  in  Tempest  v.  Camoys,  58  L.  T.  Rep.  221 ;  Amory  v.  Lord,  9  N.  Y .  403 ;  Bundy 
V.  Bundy,  38  N.  Y.  410  ;  Wetmore  v.  Truslow,  51  N.  Y.  338  ;  Tiffany  v.  Clark,  58  N.  Y. 
632  ;  Moke  v.  Norris,  14  Hun,  128,  2  Redf.  429  (criticising  Craig  v.  Hone,  2  Edw. 
Ch.  564) ;  Rogers  v.  Rogers,  18  Hun,  409. 

In  Re  Mayfield,  17  Mo.  Ap.  684,  a  trustee  was  removed  on  the  ground  that  he  was 
the  confidential  clerk  of  a  cestui  que  trust  who  was  at  odds  with  another  cestui  que 


SECT.  XII.]  IN  RE  barker's  TRUSTS.  223 


In  re  BARKER'S   TRUSTS. 
In  Chancery,  before  Sir  George  Jessel,  M.R.,  November  6,  1875. 

[Reported  in  1  Chancery  Division,  43.] 

This  was  a  Petition  under  the  Trustee  Act,  1850,  and  the  Batik' 
ruptcy  Act,  1869,  asking  for  the  removal  of  the  sole  trustee  of  a  will 
(who  had  also  a  beneficial  interest  under  it),  on  the  ground  that  he 
had  been  adjudicated  bankrupt,  and  for  the  appointment  of  a  new  trus- 
tee in  his  place,  and  for  a  vesting  order. 

Part  of  the  property  subject  to  the  trusts  of  the  will  consisted  of 
bonds  transferable  by  delivery  with  coupons.  The  trusts  were  to 
receive  the  income  and  pay  it  to  one  of  the  Petitioners  during  life. 

Chitty,  Q.  C,  and  Bush,  in  support  of  the  Petition. 

Chapman  Barber,  for  the  trustee,  said  that  it  had  never  been  held 
that  bankruptcy  alone  was  a  sufficient  reason  for  the  removal  pf  a 
trustee.  There  was  no  case  of  misconduct  made  out  against  the  pres- 
ent trustee,  and  if  the  safe  custody  of  the  property  was  desired,  that 
object  would  be  sufficiently  attained  by  the  appointment  of  an  addi- 
tional trustee. 

Chester,  for  other  parties. 

Jessel,  M.  R.  In  my  view,  it  is  the  duty  of  the  court  to  remove  a 
bankrupt  trustee  who  ha^  trust  money  to  receive  or  deal  with,  so  that 
he  can  misappropriate  it.  There  may  be  exceptions,  under  special  cir- 
stances,  to  that  general  rule  ;  '  and  it  may  also  be  that  where  a  trustee 
has  no  money  to  receive  he  ought  not  to  be  removed  merely  because  he 
has  become  bankrupt ;  but  I  consider  the  general  rule  to  be  as  I  have 
stated.^    The  reason  is  obvious.     A  necessitous  man  is  more  likely  to 

Inigt.  The  court  rleclined  to  appf)iiit  a  romaindennan  a.s  trustee  in  R<'  Paine,  .33  W. 
I{.  564,  aiifl  a  tenant  for  life  in  Jic  Ilarrop,  27  Ch.  I).  333.  For  furtlier  instances  of  dis- 
qualification on  the  score  of  interest,  see  Re  Kemp,  24  Ch.  Div.  485  ;  Re  Norn's,  27 
Ch.  1).  333 ;  Jones  v.  Stockett,  2  Bland,  434;  and  compare  Gaskill  v.  Green,  152  Mass. 
526.  —  En. 

'  Afl  in  Re  Bridpman,  1  Dr.  &  Sn).  ir)4  ;  Cooper  v.  Cooper,  I  Hal.  Ch.  9,  11.  See 
also  fie  Adams,  14  Ch.  I).  634.  —  Er>. 

*  Gladdon  ?•.  Stoncman,  1  Mad.  143,  n.  (a);  Bainhrigfre  u.  Blair,  1  Bcav.  495;  Ex 
parte  Vauphan,  13  L.  J.  Bak.  22  ;  Harris  v.  Harris,  29  Boav.  107  ;  Re  Hopkins,  19  Ch. 
Div.  61  ;  AV  Mitdifll,  52  L.  T.  ]{cp,  178,  180  {semlile)  ;  Re  Adams,  14  Cli.  I).  634  ;  Re 
Roche,  1  Con.  &  Laws.  .306,  2  Dr.  &  War.  287,  289  ;  Commissioners  v.  Archliold,  1 1  Ir. 
Eq.  R.  187  (but  see  2  H.  &  C.  440,  461)  Accord. 

TIic  court  mav,  hut  is  not  honml  to,  remove  a  trustee  for  insolvency.  Staintnn 
V.  Carron  Co.,  18  Bcav.  146;  I'aildottk  i'.  Palmer,  6  How.  Pr.  215  (insolvent  when 
appointed  cestui  que  trust,  and  known  to  bo  so).  See  also  Scott  v.  Becher,  4  Price, 
346  ;  Mansfield  v.  Shaw,  3  Mad.  100 ;  l{ev.  Code  Ala.,  §  3164.  In  Virginia,  an  insol- 
vent trustee  will  not  Ik;  allowed  to  a<t  unless  he  giv(!s  bonds.  Terry  r.  Fitzf^arrard,  32 
Grat.  893.  A  bankrupt  or  insolvent  m.'iy  of  course  bf!  made  a  trustee  by  tiio  creator 
of  the  tru.st.  Scott  v.  Carron  Co.,  18  Boav.  146  ;  Willi.ams  v.  Nichol,  47  Ark.  2.54; 
Shryock  v.  WapKoner,  2R  Pa.  430. 

Poverty  or  limited  means  was  thought  to  be  an  insufficient  ground  for  removing  a 


224  ATTORNEY   GENERAL  V.    HICKMAN.  [CHAP.  I. 

be  tempted  to  misappropriate  trust  funds  than  one  who  is  wealthy  ;  and 
besides,  a  man  who  has  not  shown  prudence  in  managing  his  own  affairs 
is  not  likely  to  be  successful  in  managing  those  of  other  people. 

However,  if  special  circumstances  are  required  for  the  removal  of  a 
bankrupt  trustee,  I  should  in  the  present  case  find  them  in  the  nature 
of  the  trust  property.  Part  of  the  property  consists  of  bonds  with 
coupons,  which  could  very  easily  be  made  away  with.  The  trustee 
must  be  removed,  and  I  make  an  order  accordingly. 


ATTORNEY   GENERAL  v.   HICKMAN. 
In  Chancery,  before  Lord  King,  C,  Trinity  Term,  1732. 

[Reported  in  W.  Kelyng,  34.*] 

This  was  an  information  exhibited  by  the  Attorney  General  for  the 
performance  of  a  charity,  given  by  a  codicil  annexed  to  the  testator's 

trustee  in  Jones  i;.  McPhillips,  77  Ala.  314  ;  Van  Boskerck  v.  Herrick,  65  Barb.  250. 
And  in  the  analogous  cases  of  executorship:  Hathornthwaite  v.  Kussell,  2  Atk.  126; 
Howard  v.  Papera,  1  Mad.  142;  Manners  v.  Furze,  11  Beav.  30,  31. 

Old  age  was  thought  to  be  a  sufficient  ground  for  removing  a  trustee  in  Jones  v. 
Stockett,  2  Bland,  Ch.  434  (semble) ,  Dorsey  v.  Thompson.  37  Md.  25,  37  (semhle).  In 
Franklin  v.  Hays,  2  Swan,  521,  the  court,  instead  of  removing  the  aged  trustee,  re- 
sorted to  the  strange  expedient  of  appointing  an  assistant  for  him. 

Drunkenness.  Habitual  intemperance  is  a  sufficient  reason  for  the  removal  of  a 
trustee.  Everett  i;.  Prythergch,  12  Sim.  363,367-368;  Fish  u.  Stubbs,  30  Ala  335 ; 
Bayles  v.  Staats,  1  Hal.  Ch.  573. 

Incontinence  was  thought  not  to  warrant  the  removal  of  a  trustee  in  Abernethy  v. 
Abernethy,  8  Fla.  243. 

Friction.  A  trustee  will  be  removed  if  the  relations  between  himself  and  his  fellows 
are  so  inharmonious  as  to  prevent  the  co-operation  essential  to  the  successful  adminis- 
tration of  the  trust,  as  inUvedale  v.  Ettrick,  2  Ch.  Cas.  130;  Quackenbos  v.  Southwick, 
41  N.  Y.  117  ;  /?e  Morgan,  63  Barb.  621  ;  Blake  v.  Sands,  3  Redf.  168  (semble) ;  Russak 
V.  Tobias,  12  N.  Y.  Civ.  Pr.  390;  Syfert's  Est.,  9  Phila.  320. 

Friction  between  the  trustee  and  the  cestui  r^ue  trust,  in  cases  where  the  trustee  has  a 
discretion  as  to  the  amount  the  beneficiary  shall  receive,  is  also  a  sufficient  ground  for 
removal.  McPherson  v.  Cox,  96  U.  S.  404  (semble) ;  Wilson  v.  Wilson,  145  Mass.  490; 
Austin  V.  Austin,  18  Neb.  306.  See  also  Scott  v.  Rand,  118  Mass.  215  ,  Howell's  Est., 
16  Phila.  232  ;  Hiller's  Est.,  9  Phila.  421.  But  when  the  duties  of  the  trustee  are  merely 
ministerial  and  there  is  no  occasion  for  personal  intercourse,  the  trustee  will  not  be 
removed  simply  because  of  unfriendly  relations  between  him  and  the  cestui  que  trust. 
Forster  v.  Davies,  4  D.  F.  &  J.  133 ;  McPherson  v.  Cox,  96  U.  S.  404 ;  Nickels  v.  Phil- 
lips,  18  Fla.  732 ;  Berry  v.  Williamson,  11  B,  Mon.  245,  271  ;  Gibbes  v.  Smith,  2  Rich. 
Eq.  131. 

In  the  case  of  a  religious  trust,  persons  holding  views  at  variance  with  the  object  of 
the  trust,  should  not  be  appointed  or  retained  as  trustees.  Atty.  Gen.  v.  Shore,  7  Sim. 
309,  317  ;  Atty.  Gen.  v.  Pearson,  7  Sim.  290,  308,  309,  3  Mer.  353  ;  lie  Ilminster,  4  Jur. 
N.  8.  676,  8  H.  L.  C.  495 ;  Atty.  Gen.  v.  St.  John,  2  Ch.  D.  554 ;  Ross  v.  Crockett,  14  La. 
An.  811.  — Ed. 

1  2  Eq.  Ab.  193,  8.  c.  —  Ed. 


SECT.  XII.]  SONLEY  V.    CLOCKMAKERS'   COMPANY.  225 

will,  by  which  he  devised  that  what  should  remain  and  be  the  residue 
of  his  estate  and  effects  be  given  for  encouraging  such  Non-conform- 
ing ministers  as  preach  God's  Word  in  places  where  the  people  are  not 
able  to  allow  them  sufficient  and  suitable  maintenance ;  and  for  the 
encouraging  such  as  are  designed  to  labor  in  God's  vineyard  as  Dis- 
senters ,  and  appointed  two  persons  to  have  the  disposal  and  appoint- 
ment of  the  said  charity,  both  which  persons  died  in  the  lifetime  of 
the  testator. 

Two  questions  arose,  Ist,^  Whether  both  the  trustees,  to  whom  the 
disposal  and  appointment  of  the  said  charity  was  given,  dying  in  the 
lifetime  of  the  testator,  this  charity  was  not  gone,  and  in  the  nature 
of  a  lapsed  legacy  ? 

But  per  King,  Chancellor.  The  substance  of  the  charity  remains 
notwithstanding  the  death  of  the  trustees  before  the  testator ;  and 
though  at  law  it  is  a  lapsed  legacy,  yet  in  equity  it  is  subsisting,  and 
here  is  a  sufficient  certainty  of  the  testator's  intentions  to  revive  it ; 
the  intention  of  the  party  therefore  is  sufficiently  manifest  that  this 
charity  should  continue  within  43  Eliz.  e.  4.^^ 


SONLEY   AND  OTHERS   v.   THE  MASTER,   &c.   OF  THE 
CLOCK-MAKERS'   COMPANY. 

In  Chancery,  before  Mr.  Baron  Etre,  for  Lord  Chancellor, 

May  30,  1780. 

[Reported  in  1  Brown  Chancery  Cases,  81] 

CoNYERS  DuNLOP  deviscd  freehold  estates  to  his  wife  for  life,  re- 
mainder to  his  brother  Charles  in  tail  male,  remainder  to  the  Clock- 
makers'  Company,  in  trust  that  they  should,  as  soon  as  conveniently 
might  be  after  the  decease  of  his  wife  and  brother  Charles  without 
issue  male,  or  after  the  death  of  such  issue  under  the  age  of  twenty- 
one  years,  sell  the  premises,  and  that  the  money  to  arise  from  such 
sale,  and  the  receipts  and  profits  from  the  decease,  «&;c.  till  the  sale 
should  be  divided  among  all  and  every  the  testator's  nephews  and 
nieces  already  born,  or  to  be  l)orn,  and  their  child  or  childron  be- 
gotten, or  to  be  begotten,  to  wit,  &c.  The  testator's  wife  and  brother 
both  died  in  his  lifetime.  The  question  therefore  was,  whether  the 
devise  to  the  corporation  being  void,  the  heir  at  law  took  beneficially, 
or  subject  to  the  trust. 

1  Only  80  much  of  the  caflo  is  pvon  as  relates  to  this  point.  —  Ed. 

2  Attorney  General  v.  Downing,  Ami).  549,  Wilmot,  21  8.  c. ;  Mo/»gri(lp;o  v.  Thack- 
wcU,  1  VoH.  .Tr.  404,  475,  per  Lord  Tliurlow  ;  A'c  Gill,  1  Scton,  Decrees  (4th  cil.),  520;, 
Be  Sminthw.iite'fl  Trusts,  11  Kq.  251  •  Charteris  v.  Charteris,  10  Ont.  738  ;  Dorsey  v. 
Thompson,  .37  Md.  25,  46  i  Cowman  v.  Colquhoun,  60  Md.  127^  134  Accord,—  Eu 

15 


226  DODKIN   V.   BKUNT.  [CIIAP.  L 

Mr.  Baron  Eyre.  Although  the  devise  to  the  corporation  be  void  at 
law,  yet  the  trust  is  suflicieutly  created  to  fasten  itself  upon  any  estate 
the  law  may  raise.^  This  is  the  ground  upon  which  courts  of  equity 
have  decreed,  in  cases  where  no  trustee  is  named. 

Decreed  that  the  heir  at  law  is  a  trustee  to  the  uses  of  the  will.^ 


DODKIN  V.   BRUNT. 
In  Chancery,  before  Sir  R.  Malins,  V.  C,  May  7,  1868. 

[Reported  in  Law  Reports,  6  Equity,  580] 

This  was  a  suit  to  administer  the  estate  of  George  Russell,  who,  by 
his  will,  dated  the  17th  of  August,  1866,  devised  certain  property  to 
an  infant  for  life,  with  remainder  to  his  wife  for  life,  remainder  to  the 
children  of  the  marriage  in  succession.  There  were  executors  ap- 
pointed by  the  will,  but  no  trustees  were  nominated.  A  decree  was 
made  in  the  suit  directing  that  trustees  should  be  appointed  of  the 
testator's  estate. 

The  executors,  who  were  the  defendants  in  the  suit,  were  appointed 
trustees  in  Chambers,  and  minutes  were  prepared  for  carrying  out 
the  order,  but  the  Registrar  objected  to  draw  it  up,  on  the  ground 
that  the  Act  15  &  16  Vict.  e.  55,  s.  9,  did  not  embrace  the  case  where 
no  trustees  had  ever  been  appointed ;  for  although  the  concluding 
words  of  the  9th  section  appeared  to  justify  an  order  appointing  a 
new  trustee,  whether  there  was  any  existing  trustee  or  not  at  the  time 
of  the  order  being  made,  still  the  introductory  words  of  the  section 
seemed  to  contemplate  the  appointment  of  a  new  trustee  only.  The 
Registrar  further  stated  that  he  could  find  no  case  in  the  office  in 
which  an  appointment  had  been  made  under  the  Trustee  Act,  where 
no  trustee  had  been  originally  appointed  by  the  testator.  He  sug- 
gested, however,  that  the  appointment  might  be  made  under  the  gen- 
eral equitable  jurisdiction  of  the  Court,  should  the  Act  be  considered 
insufficient. 

3/r.  Osborne  Morgan,  on  behalf  of  the  parties  to  the  suit,  stated  the 

»  Anon.,  2  Vent.  349 ;  Farmers'  Co.  v.  Chicago  Co.,  27  Fed.  Rep.  146 ;  Vidal  v. 
Girard,  2  How.  127 ;  Walker  v.  Walker,  25  Ga.  420;  Byers  v.  McCarty,  62  Iowa,  3.39; 
Jackson  v.  Hartwell,  8  Johns.  422;  Sheldon  v.  Chappell,  47  Hun,  59;  Frazier  v.  Rec- 
tor (Pa.,  1892),  23  AtL  R.  442;  White  v  Baylor,  10  Ir.  Eq.  R.  43,  53-54. 

If  the  trustee  and  cestui  que  trust  are  both  incapable  of  taking,  the  trust  fails 
altogether.     American  Society  v.  Gantrell,  23  Ga.  448.  —  Ed. 

2  "  Declared  that  the  devise  of  the  estate  to  the  Clock-makers'  Company  was  void  In 
law;  but  that  the  same  descended  to  the  heirs  at  law  of  the  testator,  upon  and  subject 
to  the  trusts  in  his  said  will."  —  It  L. 


SECT.  XII.]  ADAMS  V.  ADAMS.  227 

Registrar's  objection,   and  submitted  that  the  Court  had  power  to 
make  the  order  independently  of  the  Act. 

Sir  R.  Malins,  V.  C.  My  opinion  is,  that  the  Court  has  inherent 
jurisdiction  in  a  cause  to  appoint  trustees  of  a  will,  in  a  case  where 
no  trustees  were  originally  appointed  by  the  testator.  I  shall,  there- 
fore, direct  the  order  appointing  Messrs.  Brunt  and  Kent  trustees  to 
be  drawn  up.^ 


ADAMS  V.   ADAMS. 
In  the  Supreme  Court,  United  States,  October,  1874. 

[Reported  in  21  Wallace,  185.] 

Appeal  from  the  Supreme  Court  of  the  District  of  Columbia.  The 
case  was  thus. 

Adams,  a  government  clerk  in  Washington,  owning  a  house  and  lot 
there,  on  the  13th  of  August,  1861,  executed,  with  his  wife,  a  deed  of 
the  premises  to  one  Appleton,  in  fee,  as  trustee  for  the  wife.  The 
deed  by  appropriate  words  in  prcesentl  conveyed,  so  far  as  its  terms 
were  concerned,  the  property  for  the  sole  and  separate  use  of  the  wife 
for  life,  with  power  to  lease  and  to  take  the  rents  for  her  own  use,  as 
if  she  was  a  feme  sole  ;  the  trustee  having  power,  on  request  of  the 
wife,  to  sell  ami  convey  the  premises  in  fee  and  pay  the  proceeds  to 
her  or  as  she  might  direct ;  and  after  her  death  (no  sale  having  been 
made),  the  trust  being  that  the  trustee  should  hold  the  property  for 
the  children  of  the  marriage  as  tenants  in  common,  and  in  default  of 
issue  living  at  the  death  of  the  wife,  then  for  Adams,  the  husband, 
his  heirs  and  assigns. 

The  deed  was  signed  by  the  grantors,  and  the  husband  acknowl- 
edged it  before  two  justices  "to  be  his  act  and  deed."  The  wife  did 
the  same  ;  being  separately  examined.  Tlio  instrument  purported  to 
he  "signed,  sealed,  and  delivered"  in  the  presence  of  the  same  jus- 
tices, and  tlicy  signed  it  as  attesting  witnesses.  The  husband  put  it 
himself  on  record  in  the  registry  of  deeds  for  the  county  of  Wash- 
ington, D.  C,  which  was  the  appropriate  place  of  record  for  it. 

'  I'itt  r.  Pflham,  Frccm  Ch  1.34;  Locton  v.  Locton,  Freem.  Ch.  136;  Bcntham  v. 
Wilttliiro,  4  Ma<l(l.  44;  .Johnson  v  Maviio,  4  Iowa,  180;  Naaori  v.  First  Clinrcli,  66 
Me.  100,  Hartlctt  v.  Nyo,  4  Met.  378,  Hailoy  i'.  Kilhurn,  10  Mot.  176;  Fir.^t  Society 
V  Fitfh,  8  Gray, 421  ;  /{f  Erustern  Co.,  120  M.-lss  412 ;  Wlieelor  v.  I'crry,  18  N,  11.  307  ; 
De  Unranto  v  Gott,  6  Harh.  492;  Slielfloii  v.  Chappell.  47  Iliin,  5'J,  6.3;  Sowers  v. 
Cyrcniii.s,  .39  f)h  St  29;  Varncr's  App,  80  I'a.  140;  Harret  v  Harrot,  4  Dcsh.  447; 
Porter  v  Rutland  Hank,  19  Vt.  410,  420  Arcnrd.  See  also  Re  Davis's  Trusts,  12*Eq. 
44',  I'r  (lillctt'.s  Trusts,  2.5  W.  It.  23;  Re  Moore,  21  Ch  D.  778;  decided  under  the 
Trustee  Acts  of  1850.  —  Ed. 


228  ADAMS   V.   ADAI^IS.  [CIIAP.  I. 

Subsequent  to  tins,  that  is  to  say  in  September,  1870,  the  husband 
and  wife  were  divorced  by  judicial  decree. 

And  subsequently  to  this  again,  that  is  to  say,  in  December,  1871,  — 
the  husband  being  in  possession  of  the  deed,  and  denying  that  any 
trust  was  ever  created  and  executed,  and  Appleton,  on  the  wife's 
[husband's?]  request,  declining  to  assert  the  trust,  or  to  act  as 
trustee,  —  Mrs.  Adams  filed  a  bill  in  the  court  below  against  them 
both,  to  establish  the  deed  as  a  settlement  made  upon  her  by  her  hus- 
band, to  compel  a  delivery  of  it  to  her ;  to  remove  Appleton,  the 
trustee  named  in  it,  and  to  have  some  suitable  pei'son  appointed 
trustee  in  his  place. 

The  court  below  declared  the  trust  valid  and  effective  in  equity  as 
between  the  parties  ;  appointed  a  new  trustee  ;  required  the  husband 
to  deliver  up  the  deed  to  the  wife  or  to  the  new  trustee  ;  and  to  deliver 
also  to  him  possession  of  the  premises  described  in  the  deed  of  trust, 
and  to  account  before  the  master  for  the  rents  and  profits  of  it  which 
had  accrued  since  the  filing  of  the  bill,  receiving  credit  for  any  pay- 
ment made  to  the  complainant  in  the  mean  time,  and  to  pay  the 
complainant's  costs  of  the  suit. 

From  a  decree  accordingly,  the  husband  appealed.^ 

Messrs.  T.  J.  D.  Fuller  and  E.  Lander.^  for  the  complainant. 

Messrs.  W.  W.  Boyce  and  John  Selclen,  contra. 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  Court. 

The  first  question  in  this  case  is  whether  there  was  a  delivery  of  the 
deed  of  August  13th,  1861.  If  not  a  formal  ceremonious  delivery, 
was  there  a  ti-ansaction  which,  between  such  parties  and  for  such  pur- 
poses as  exist  in  the  present  case,  the  law  deems  to  be  sufficient  to 
create  a  title  ?  The  bill  avers  that  the  deed  was  delivered  by  the  par- 
ties and  put  on  record  in  the  way  which  it  states. 

The  answer  is  responsive  to  the  allegations  in  the  plaintiff's  bill,  that 
the  deed,  after  being  signed,  sealed,  and  delivered,  was  recorded  at 
the  request  of  the  defendant,  Adams,  and  at  his  expense. 

The  burden  is  thus  imposed  upon  the  plaintiff  of  maintaining  her 
allegation  by  the  proof  required  where  a  material  allegation  in  the  bill 
is  denied  by  the  answer. 

It  is  evident,  however,  that  the  apparent  issues  of  fact  and  seem- 
ing contradictions  of  statement  become  less  marked  by  looking  at 
what  the  parties  may  suppose  to  constitute  a  delivery.  That  the 
defendant  signed  and  sealed  the  deed  he  admits.  That  with  his 
wife,  the  present  plaintiff,  he  acknowledged  its  execution  before  two 
justices  of  the  peace,  and  that  the  deed  thus  acknowledged  by  him 
not  only  purported  by  words  in  prcesenti  to  grant,  bargain,  and  con- 
vey the  premises  mentioned,  but  declared  that  the  same  was  signed, 
sealed,  and  delivered,  and  that  this  deed,  with  these  declarations  in 
it,  he  himself  put  upon  the  record,  is  not  denied.     If  these  facts 

1  The  statement  of  facts  is  abridged,  and  a  part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  Xn.]  ADAMS  V.   ADAMS.  229 

constitute  a  delivery  under  circumstances  like  the  present,  then  the 
defendant,  when  he  denies  that  a  delivery  was  made,  denies  the  law 
simply. 

Mrs.  Adams  and  two  other  witnesses  were  examined.  None  of  Mrs. 
Adams's  statements  are  denied  by  Mr.  Adams.  He  was  as  competent 
to  testify  as  she  was.  So,  although  time,  place,  and  circumstances 
are  pointed  out  in  the  testimony  of  one  of  the  other  witnesses,  the  de- 
fendant makes  no  denial  of  the  statement ;  nor  does  he  deny  the 
statement  of  the  other  witness,  giving  her  conversation  with  him  in 
detail,  in  which  she  says  that  he  admitted  the  trust. 

The  deed  corresponded  substantially  with  the  intention  which  these 
witnesses  state  that  Adams  expressed.  Should  the  property  be  sold 
by  the  order  of  Mrs.  Adams,  the  money  received  would  be  subject  to 
the  same  trusts  as  the  land,  to  wit,  for  the  use  of  Mrs.  Adams  during 
her  lifetime  aud  her  children  after  her  death.  It  would  not  by  such 
transmutation  become  the  absolute  property  of  Mrs.  Adams. 

Upon  the  evidence  before  us  we  have  no  doubt  that  the  deed  was 
executed,  acknowledged,  and  recorded  by  the  defendant  with  the  in- 
tent to  make  provision  for  his  wife  and  children ;  that  he  took  the 
deed  into  his  own  possession  with  the  understanding,  and  upon  the 
belief  on  his  part,  that  he  had  accomplished  that  purpose  by  acknowl- 
edging aud  procuring  the  record  of  the  deed,  by  showing  the  saiiie  to 
his  wife,  informing  her  of  its  contents,  and  placing  the  same  in  the 
house  therein  conveyed  in  a  place  equally  accessible  to  her  and  to 
himself. 

The  defendant  now  seeks  to  repudiate  what  he  then  intended, 
and  to  overthrow  what  he  then  asserted  and  believed  he  had  then 
accoraplislied. 

It  may  be  conceded,  as  a  general  rule,  that  delivery  is  essential, 
both  in  law  and  in  equity,  to  the  validity  of  a  gift,  whether  of  real  or 
personal  estate.^  What  constitutes  a  delivery  is  a  subject  of  great 
difference  of  opinion,  some  holding  that  a  parting  with  a  deed,  even 
for  the  purpose  of  recording,  is  in  itself  a  delivery .'■^ 

It  may  be  conceded  also  to  have  been  held  many  times  that  courts 
of  equity  will  not  enforce  a  merely  gratuitous  gift  or  mere  moral 
obligation.^ 

These  concessions  do  not,  however,  dispose  of  the  present  case. 

1st.  We  are  of  opinion  that  tlK3  refusal  of  Appleton,  in  1870,  to  ac- 
cept the  deed,  or  to  act  as  trustee,  is  not  a  controlling  circumstance. 

Although  a  trustee  may  never  have  heard  of  tlie  deed,  the  title  vests 
in  him,  subject  to  a  disclaimer  on  his  part.*     Such  disclaimer  will  not, 

'  12  Vesey,  39  and  note,  Antrohus  i'.  Smith. 

2  Cloud  V.  Calhoun,  10  Richardwju'a  Eciuity,  3f.2. 

8  Ihi.l. 

*  Cloud  V.  Calhoun,  10  RichnrdHon's  Equity,  362.  See,  to  the  same  effi-ct,  Smith  v. 
Whr><-lrT,  1  Vent.  128  (approved  in  Starirling  v.  RowriiiK,  31  Ch.  Div.  282,  288); 
Siggors  I'.  Evans,  .5  E.  &  B.  307;  Donaldson  i-.  Donaldson,  Kay,  711  ;  Re  Way's 


230  ADAMS   V.   ADAMS.  [CIIAP.  L 

however,  defeat  the  conveyance  as  a  transfer  of  the  equitable  interest 
to  a  tliird  person.^  A  trust  cannot  fail  for  want  of  a  trustee,  or  by 
the  refusal  of  all  the  trustees  to  accept  the  trust. ^  The  court  of 
chancery  will  appoint  new  trustees.^ 

Trusts,  2  D.  J.  &  S.  365  ;  Liutou  v.  Brown,  20  Fed.  Rep.  455,  467  (semble) ;  Weber  v. 
Christen,  121  111.  91  {semble) ;  Myrover  v.  French,  73  N.  Ca.  609  ;  Wilt  t;.  Franklin,  1 
Biun.  502  :  Kead  v.  Robinson,  6  W.  &  S.  329  ;  First  Bank  v.  Ilohnes,  85  Pa.  231.  The 
contrary  opinions  in  Meek  y.  Kettlewell,  1  Hare,  464,  and  Bridget.  Bridge,  16  Beav.  315, 
that  notice  to  the  trustee  is  esseutiiil  to  the  validity  of  a  trust,  are  overruled. 

Tlie  same  result  is  reached  by  the  common  statement  that  the  assent  of  the  trustee 
is  presumed  until  the  contrary  is  shown.  Wise  v.  Wise,  2  Jon.  &  Lat.  403,412;  King 
V.  Phillips,  16  Jur.  1080;  Kennedy  v.  Wire,  80  Ala.  165;  Howry  v.  Gardner,  41  Oh. 
St.  642  ;  McKiuncy  v.  Rhoads,  5  Watts,  343;  Eyrick  v.  Hetrick,  13  Pa.  488;  Cloud  v. 
Calhoun,  10  Rich.  Eq.  358;  Field  y.  Arrowsmith,  3  Humph.  446;  Saunders  v.  Harris, 
1  Head,  185. —  Ed. 

1  Lewin  on  Trusts,  152 ;  King  v.  Donnelly,  5  Paige,  46. 

2  Backhouse  v.  Backhouse  (cited),  Lewin  on  Trusts,  8th  ed.  833  n.  (b) ;  Wilks  v. 
Groom,  6  D.  M.  &  G.  205  ;  Austin  v.  Martin,  29  Beav.  523 ;  Izod  v.  Izod,  32  Beav.  242 ; 
Grady  v.  Ibach  (Ala.,  1891),  10  So.  R.  287 ;  Storrs  School  v.  Whitney,  .54  Conn.  342 ; 
Dailey  v.  New  Haven,  60  Conn.  314;  Re  Petranek,  79  Iowa,  410;  Penny  v.  Davis,  3 
B.  Mon.  313,  314;  Harris  v.  Rucker,  13  B.  Mon.  564;  Winder  v.  Diffenderfer,  2 
Bland,  166,  172;  Jones  v.  Stockett,  2  Bland,  409,  435;  Thatcher  v.  St.  Andrew's 
Church,  37  Mich.  264,  270;  Wilson  v.  Towle,  36  N.  H.  129;  Adams  v.  Adams,  64 
N.  H.  224  ;  De  Peyster  v.  Clendinning,  8  Paige,  295 ;  McLusker  v.  Brady,  1  Barb.  Ch. 
329 ;  Burrill  v.  Shell,  2  Barb.  457 ;  Dunning  v.  Ocean  Bank,  6  Lans.  296 ;  Re  Robiu- 
r,on,  37  N.  Y.  261  ;  Sheldon  v.  Chappell,  47  Hun,  59,  63 ;  McLean  v.  Nelson,  1  Jones 
(N.  Ca.),  396;  Myrover  v.  French,  73  N.  Ca.  609;  Read  v.  Robinson,  6  W.  &  S.  329; 
First  Bank  v.  Holmes,  85  Pa.  231  ;  Ashe  v.  Ashe,  Rich.  Eq.  Cas.  380;  Withers  v. 
Jeiikins,  6  S.  Ca.  122;  Field  v.  Arrowsmith,  3"Humph.  446  ;  Brevart  y,  Neely,  2  Sueed, 
164;  Saunders  v.  Harris,  1  Head,  185;  Goss  v.  Singleton,  2  Head,  67;  Furman  v, 
Fisher,  4  Col.  626,  630;  Johnson  v.  Roland,  58  Tenn.  203,  211  ;  Walker  v.  Johnson, 
37  Tex.  127  ;  Lee  v.  Randol])h,  2  Hen.  &  Munf.  12'Accord. 

A  trustee  may  disclaim  either  by  deed  —  Doe  v.  Harris,  16  M.  &  W.  517  ;  Pepper- 
corn V.  Wayman,  5  DeG.  &  Sm  230  — or  by  parol.  Townson  i;.  Tickell,  3  B.  &  Al. 
31  ;  Staceyi'.  Elph,  1  M.  &  K.  195;  Foster  «  Dawber,  1  Dr.  &  Sm.  172;  Birchall  v. 
Birchall,  40  Ch.  Div.  436;  Adams  v.  Adams,  64  N.  H.  224;  Barritt  v.  Silliman,  13 
N.  Y.  93  ;  Beekman  v.  Bonsor,  23  N.  Y.  298,  305  ;  Re  Robinson,  37  N.  Y.  261 ;  Green 
V.  Green,  4  Redf.  357  ;  Read  i;.  Robinson,  6  W.  &  S.  329. 

Disclaimer  comes  too  late  after  conduct  indicating  acceptance.  Conyngham  v. 
Conyngliam,  1  Ves.  522 ;  Bence  v.  Gilpin,  L.  R.  3  Ex.  76 ;  Kennedy  v.  Wire,  80  Ala. 
165.  In  Crewe  v.  Dicken,  4  Ves.  97,  Lord  Loughborough  held  that  a  release  by  a 
trustee  to  a  co-trustee  by  way  of  disclaimer  was  ineffectual,  because  the  release  im- 
plied an  acceptance  of  the  trust.  But  Lord  Eldon,  in  Nicholson  v.  Wentworth,  2  Sw. 
365,  declined  to  follow  this  doctrine.  See,  in  confirmation  of  Lord  Eldon,  Hussey  v. 
Markham,  Finch,  258. 

If  the  conveyance  is  to  several  trustees  and  one  or  more,  but  less  than  all,  disclaim, 
the  rest  are  competent,  and  bound  to  perform  the  trust.  Bonifant  v.  Greenfield,  Cro. 
El.  80;  Smith  v.  Wheeler,  1  Vent.  128,  2  Keb.  774,  1  Lev.  179;  Small  v.  Marwood, 
9  B.  &  C.  300;  Adams  i'.  Taunton,  5  Madd.  435;  Cooke  v.  Crawford,  13  Sim.  91  ; 
Browell  v.  Read,  1  Hare,  434  ;  Cape  v.  Bent,  9  Jur.  653  ;  Eaton  v.  Smith,  2  Beav.  236  ; 
Watson  V.  Pear.son,  2  Ex.  581,  594;  Peppercorn  v.  Wayman,  5  DeG.  &  Sm.  2.30; 
White  V.  McDermott,  7  Ir.  R.  C.  L.  1 ;  Nicoll  v.  Miller,  37  111.  387  ;  Putnam  School  v. 
Fi.sher,  30  Me.  523;  Ratcliffe  v.  Sangston,  18  Md.  383;  Long  v.  Long,  62  Md.  33; 
Ellis  V.  Boston  Co.,  107  Mass.  1,  13;  Scull  v.  Reeves,  1  Green,  Ch.  84 ;  Re  Stevenson, 
3  Paige,  420 ;  King  v.  Donelly,  5  Paige,  46 ;  Re  Van  Schoonhoven,  5  Paige,  559  ;  Jack- 
son V.  Ferris,  15  Johns.  346;  Nills  v.  Stevens,  4  Den.  399 ;  Leggett  v.  Hunter,  19  N.  Y. 


SECT.  XII.]  ADAMS  V.   ADAMS.  2SX 

We  think  that  the  decree  of  the  court  below  was  well  made,  and 
that  it  should  be  Affirmed. 

445  ;  Clemens  v.  Clemens,  60  Barb.  366 ;  Zebach  v.  Smith,  3  Binn.  69  j  Bailey's  Peti- 
tion, 15  R.  I.  60;  DeSaussure  v.  Lyon,  9  S.  Ca.  492. 

But  if  an  obligation  is  executed  to  two  or  more  obligees  upon  certain  trusts,  a  dis- 
claimer by  one  of  the  obligees  will  not  vest  the  title  to  the  obligation  in  the  others. 
The  obligation  is,  therefore,  in  such  a  case  not  enforceable  at  law.  Wetherell  v. 
Langston,  1  Ex.  634.  But  equity  would  not  permit  the  trust  to  fail.  See  Fletcher  v. 
Fletcher,  4  Hare,  67.  —  Ed. 


232  CLARK  V.    CL^VRK.  [CHAP.  L 


SECTION  XIII. 

Notice  to  the  Cestui  que  Trust. 

EMRI   CLARK  v.   ANN   CLARK  and  Trustee. 
In  the  Supreme  Judicial  Court,  Massachusetts,  November,  1871 

[Reported  in  108  Massachusetts  Reports,  522. J 

Trustee  process.  The  defendant  was  defaulted  in  the  Superior 
Court,  and  the  Boston  Five  Cents  Savings  Bank,  who  were  summoned 
as  trustees,  made  answer  that  they  had  in  their  possession  $628,  de- 
posited by  Betsey  Abbott  and  credited  on  their  books  to  her  as  trustee 
for  the  defendant.  William  H.  Carter,  administrator  of  the  estate  of 
Betsey  Abbott,  appeared  as  claimant.  The  issue  between  the  plaintiff 
and  the  claimant  was  heard,  without  a  jury,  by  Pitmayi,  J.,  and  re- 
ported for  the  determination  of  this  court  substantially  as  follows. 

Betsey  Abbott  deposited  in  the  bank  money  belonging  to  herself,  in 
the  name  of  "  Betsey  Abbott,  trustee  for  Ann  Clark,"  and  afterwards 
died,  having  retained  the  book  of  deposit  until  her  death,  and  until 
then  the  defendant,  who  was  her  half-sister,  had  no  notice  of  the  de- 
posit. A  by-law  of  the  bank,  which  was  admitted  in  evidence  against 
the  objection  of  tlie  plaintiff,  provided  "  that  no  person  shall  receive 
any  part  of  his  principal  or  interest  without  producing  the  original 
book,  that  such  payments  may  be  entered  therein." 

The  plaintiff  offered  evidence  of  the  intent  of  Betsey  Abbott  to 
create  a  trust  in  favor  of  the  defendant ;  but  the  judge  ruled  that, 
even  if  such  intent  were  proved,  the  plaintiff  could  not  recover,  and 
directed  judgment  for  the  claimant.  If  this  ruling  was  correct,  judg- 
ment was  to  be  entered  accordingly,  otherwise  the  case  was  to  stand 
again  for  trial. 

A.  E.  Pillsbury,  for  the  plaintiff. 

C.  P.  Judcl,  for  the  claimant. 

Chapman,  C.  J.  The  case  of  Brabrook  v.  Boston  Five  Cents 
Savings  Bank,  104  Mass.  228,  is  decisive  of  this  case.^     The  money 

1  This  seems  to  be  a  misconception.  In  Brabrook  v.  Boston  Bank,  104  Mass.  228, 
no  real  trust  was  intended,  the  deposit  being  nominally  in  trust  solely  for  the  purpose 
of  evading  a  by-law  of  the  bank  which  limited  the  amount  of  the  deposits  to  the  credit 
of  any  one  person.  The  case  in  this  respect  is  the  same  as  Field  v.  Lonsdale,  13  Beav. 
78  ;  Powers  v.  Provident  Inst.,  124  Mass.  377  ;  Jewett  ?-.  Shattuck,  124  Mass.  590 ;  Park- 
man  y.  Suffolk  Bank,  151  Mass.  218;  Bartlett  v.  Remington,  59  N.  H.  364;  Weber  v. 
Weber  (N.  Y.  S.  C.  1879),  21  Alb.  L.  J.  51  ;  and  Markey  ;;.  Markey  (N.  Y.  C.  P.), 
13  N.  Y.  Sup.  925.     See  also  Smith  v.  Speer,  34  N.  J.  Eq.  336. 

The  principal  case  runs  counter  also  to  another  class  of  cases.  If  a  donor,  instead 
of  taking  an  obligation  in  his  own  name  in  trust  for  the  donee,  takes  it  in  the  name  of 


SECT.  XIII.]  CLAEK  V.    CLARK.  233 

originally  belonged  to  Betsey  Abbott,  and  was  deposited  in  the  bank 
by  her ;  and  though  she  deposited  it  in  the  name  of  "  Betsey  Abbott, 
trustee  of  Ann  Clark,"  yet  she  retained  the  book  of  deposit,  and  gave 
Ann  Clark  no  notice  of  what  she  had  done,  nor  did  she  know  it  till 
after  Betsey  Abbott's  death.  By  one  of  the  by-laws  of  the  bank,  no 
one  could  draw  any  part  of  the  money  without  producing  the  bank- 
book. Even  if  the  plaintiff  could  prove  that  she  intended  to  create  a 
trust,  she  did  not  do  what  was  necessary  to  carry  the  intent  into  effect. 
Ann  Clark  was  not  a  party  to  the  transaction,  and  never  acquired 
any  title  to  the  money  ;  and  upon  the  death  of  Betsey  Abbott  it 
passed  to  her  administrator.  Judgment  for  the  claimant. 

the  donee,  the  gift  is  complete  and  irrevocable,  notwithstanding  the  donee's  ignorance 
of  the  transaction.  Standing  v.  Bowring,  31  Ch.  Div.  282,  27  Ch.  D.  341  (shares)  ; 
Holliday  v.  Lewis,  14  Hun,  478  (note)  ;  Beaver  v.  Beaver,  62  Hun,  194  (hank  deposit) ; 
Smith  V.  Bank  of  Washington,  5  S.  &  K.  318  (shares);  Bead  r.  Roberts,  85  \'&.  84  (shares); 
Langdou  v.  Allen,  1  \V.  N.  (Pa.)  395  (note);  Scott  c.  Dickson,  108  Pa.  6  (semble, 
insurance  policy) ;  Howard  v.  Windham  Bank,  40  Vt.  597  (bank  deposit). 

Bnt  see,  contra,  Ide  v.  Pierce,  134  Mass.  260  {semlile,  bank  dojiosit)  ;  Sherman  v. 
New  Bedford  Bank,  138  Mass  581  (bank  deposit)  ;  Scott  v.  Berkshire  Bank,  140 
Mass.  157  (semble,  bank  deposit) ;  Branch  v.  Dawson,  36  Minn.  193  (bank  deposit); 
and  compare  Blasdel  c.  Locke,  52  N.  H.  238 ;  Sniitli  v.  Savings  Bank,  64  N.  II.  228, 
231. 

A  trust  created  after  the  analogy  of  a  feoffment  to  uses,  i.  e.  by  vesting  a  title  in 
one  person  in  trust  for  another,  is  valid  and  irrevocal)le,  without  regard  to  tlie  knowl- 
edge or  ignorance  of  the  cestui  (jue  trust.  Clavering  v.  t.'lavering,  2  Vern.  473  ;  Smith 
V.  Lyne,  2  Y.  &  C.  C  C.  345  ;  Fletcher  v.  Fletcher,  4  Hare,  67  ;  Paterson  »;.  Murphy, 
1 1  Hare,  88  ;  Tate  v.  Leithead,  Kay,  658  ;  Re  Way's  Trusts,  2  D.  J.  &  S.  365  ;  Miuot  v. 
Tilton,  64  N.  H.  371  ;  (iulick  v.  Gulick,  39  N.  J.  Eq.  401  ;  Meiggs  r.  Mciggs,  15  Hun, 
453;  Van  Cott  i'.  Prentice,  104  N.  Y.  45;  Wadd  v.  Hazleton,  62  Hun.  602. 

It  is  hardly  necessary  to  cite  the  following  cases,  showing  that  a  trust  once  created 
is  irrevocable.  Petre  v.  Espina.sse,  2  M.  &  K.  496;  Bill  v.  Cure-ton,  2  M.  &  K.  503; 
Kycroft  v.  Christy,  3  Beav.  238  ;  Evans  v.  .Jennings,  6  W.  R.  616  ;  Andrews  v.  Hobson, 
23  Ala.  219;  Hollman  v.  Mc Williams,  70  Cal.  449;  Gordon  v.  Green,  10  Ga.  534; 
McDonald  i'.  Starkey,  42  111.  442;  Massey  >'.  Huntington,  118  111.  80;  Gayhml  v. 
Lafayette,  115  Ind  423;  Wri'^'ht  /•.  Moody,  116  Ind.  175;  Ewing  r.  Jones,  Ind.  (1892), 
29  N.  E.  R.  1057;  RidiUe  v.  Cutter,  49  Iowa,  547;  Butler  v.  Miller,  15  B.  Mon.  617, 
626;  Viney  r-.  Abbot,  109  Mass.  300;  Sowall  v.  Roberts,  115  Mass.  262,  274";  Re 
Thnr.mon,  Mass.  (1891),  29  N.  E.  R.  .53  ;  Ewing  v.  Warner,  Minn.  (1891),  .50  N.  W.  R. 
603;  Minot  ».  Tilton,  64  N.  H.  371  ;  Isham  v.  Delaware  Co.,  3  Stock.  227;  Gulick  v. 
Gulick,  .39  N.  J.  Eq.  401  ;  Crne  v.  Caldwell,  52  N.  J.  215  ,  Beekman  i;.  Hendrickson, 
N.  J.  Eq.  (1891 ),  21  Atl.  R.  567  ;  Fellows  i\  Ileermaiis,  4  Lans.  230  ;  Meiggs  v.  Mciggs, 
\:,  Hun,  453  ;  Mabif;  ".  ilailey,  95  N.  V.  206  ;  Wall.ice  r.  Herdell,  97  N.  Y.  13  ;  McPlicr- 
Hon  V.  Rollins,  107  N.  Y.-316;  Cre.ssman's  Ap.,  42  Pa.  147  ;  Fellow's  Ap.,  93  Pa.  470; 
Solms  V.  Phila.  Co.,  16  W.  N.  (Pa.  C.  P.)  80;  Murphy  v.  ,S„luis,  6  Pa.  Co.  R.  264; 
Eaton  V.  Tilliiicha'»t,  4  R.  I.  276  ;  Barber  v.  Thomson,  49  \'t.  21.3  ;  Sargent  v.  Baldwin, 
60  Vt.  17;  Howard  r.  Howard,  60  Vt.  302;  P.rown  r.  Cavendish,  1  .J.  &  Lat.  606, 
637.  — Ed. 

2  Stone  V.  Bishop,  4  Cliff.  593;  Cummings  v.  Bramhall,  120  Mass.  554;  Gerrish  v. 
New  Bedford  In.ttitution,  Ii!H  Mass.  159,  162  (.leinble)  ;  Alger  i'.  North  End  Bank,  146 
Mass.  418,  422  (srmhh)  Arrnrtl. 

Forbes  v.  Forbes,  30  Law  TimeR,  176  {sfmbk) ;  Middleton  v.  Pollock.  2  Ch.  D.  104  ; 
Minor  y.  Rogors,  40  Conn.  . 512 ;  Smith  v.  Darby,  39  Md.  268;  Witzcl  v.  CIia|)in,  3 
Bradf.  386  ;  Smith  i'.  Lee,  2  Th.  &  C.  591  ;  Martin  v.  Funk,  75  N.  Y.  134  ;  Willis  r. 
Smyth,  91  N.  Y.  297 ;  Mabie  v.  Bailey,  95  N.  Y.  206;  Anderson  r.  Thomson,  38  Ilun, 


234  CLARK  V.   CLARK.  [CHAP.  L 

394  ;  Scott  v.  Ilarbeck,  39  IIuu,  292;  Re  CoUyer,  4  Dem.  24;  Ee  Smith,  144  Ta.  428; 
Re  Gaffncy,  146  Pa.  49  Contra. 

lu  Martin  v.  Funlt,  supra,  Clmrch,  C.  J.,  delivering  tlic  opinion  of  the  court,  said,  p. 
139 :  "But  the  Supreme  Court  of  Massacimsetts  in  two  cases,  Brahrook  i\  Five  Cents 
Savings  Bank  (104  Mass.  228),  and  Clark  v.  Clark  (108  id.  522),  seem  to  hold  a  different 
doctrine.  In  the  first  case  the  circumstances  were  deemed  controlling,  adverse  to  an 
intent  to  create  a  trust,  and  in  the  last,  which  was  similar  in  its  facts  to  tliis,  the  court 
express  the  opinion  that  the  trust  was  not  complete,  but  without  giving  any  reasons  for 
tl\e  opinion.  The  last  decision,  although  entitled  to  great  respect,  is  exceptional  to  the 
generrfl  current  of  authority  in  this  country."  In  Beaver  v.  Beaver,  53  Hun,  258, 
Learned,  P.  J.,  said,  p.  259  :  "  And  we  must  notice,  in  regard  to  Massachusetts  cases, 
that  Martin  v.  Funk  is  not  in  harmony  with  Massachusetts  decisions.  But  it  is  our 
law,  and  it  is  thoroughly  sound  common  sense,  like  everything  else  which  came  from 
the  learned  judge  who  wrote  the  opinion."  —  Ed. 


SECT.  I.]  megod's  case.  235 


CHAPTER  II. 

THE   KATUEE   OF   THE    CESTUI   QUE    TRUST'S 

Ij^TEREST. 


SECTION  I. 

His  Claim  is  purely  Equitable,  except  when  Account  ivould  lie 

at  Common  Laiv. 

MEGOD'S    CASE. 
Is"  THE  Queen's  Bench,  Michaelmas  Term,  1585. 

[Reported  in  4  Leonard,  225.^] 

A.  enfeoffed  B.  to  the  intent  that  B.  should  convey  the  said  land  to 
such  person  as  A.  should  sell  it.  A  sold  it  to  C,  to  whom  B.  refused 
to  convey  the  land  ;  and  thereupon  he  brought  an  action  upon  the  case 
against  B.  And  by  Wkay  Chief  Justice  and  Gawdy  Justice  here  is  a 
good  consideration,  for  here  is  a  trust,  and  that  which  is  a  good  con- 
sideration in  the  Chancery  is  in  this  case  sufficient.  Shute  Justice 
was  of  a  contrary  opinion,  and  afterwards  judgment  was  given  for  the 
plaintiff.^ 

>  Godb.  64,  8.  c.  —  Ed. 

•^  In  Butler  v.  Butler  (1637),  2  Sid.  21,  it  is  said  :  "  If  one  devises  that  his  heir  shall 
pay  i*"(h  a  sum,  for  default  of  payment  an  action  on  the  case  lies.  For  a  breach  of 
jironiise  or  breach  of  trust  is  a  jiroper  ground  of  au  action  in  the  case."  In  Jevon  v. 
Bush  (1685),  1  Vern.  342,  344,  it  is  reported  that  Lord  .Jeffries,  C,  "cited  my  Lord 
Ilobart,  who  says  that  rtstui  i/ue  trust  in  an  action  on  tlie  case  against  liis  trustee 
shall  recover  for  a  breach  of  trust  in  damages."  See  also  1  Eq.  Ab.  384,  D,  n.  (a).  In 
Smith  V.  .Jameson,  .')  T.  11.  601,  Bulkr,  .J.  said,  p.  603  :  "With  regard  to  the  other 
point  made,  that  a  breach  of  tru.st  may  not  bo  tlie  ground  of  an  a.ssum])sit,  tliere  is 
not  an  abridgment  in  the  law  which  docs  not  contr.idict  such  a  proposition."  See  also 
Bennett  v.  I'reston,  17  Ind.  2!tl  ;  Newiiall  ».  Newhall,  7  Mass.  H»8. 

Hut  see  Fordo  v.  Iloskins  (IGl.'i),  1  K<dle,  12.').  Coke,  C.  .J.  :  "  If  cestui  que  use  at 
common  law  rctjuestcd  his  feoffees  to  make  a  feoffment  to  J.  S.,  and  they  refused,  no 
actifni  upon  the  case  would  lie,  quoil  fuit  ranccisum  prr  Curiam,  but  the  solo  rem(vly  is 
in  Chancery."  Sec  2  Bulst.  336,  337,  s.  c.  To  the  same  cffict  is  Turner  v.  Sterling 
( 1671 ),  Frecm.  15.  "  Per  Curiam.  An  action  on  the  case  will  not  lie  against  feoffees 
in  trust  if  they  will  not  convey  ;  but  the  proper  remedy  is  by  subpona."  In  Barn.i- 
diston  V.  Soame  (1676),  6  How.  St.  Trials,  1063,  Lord  North,  C.  .1.  said,  p.  1098 :  "  No 
action  upon  the  case  will  lie  for  breach  of  a  trust,  because  the  determination  of  the 


236  HOLLAND  V.   HOLLAND.  [CHAP.  IL 


v^^' 


V 


HOLLAND  V.   HOLLAND. 

Chancery,  before  Sir  C.  J.  Selwyn  and  Sib  G.  M. 
GiFFARD,  L.  JJ.,  April  24,  18G9. 

[Reported  in  4  Chancery  Appeals,  449.] 

The  question  on  this  appeal  was  whether  money  due  from  the  es- 
tate of  a  trustee  iu  consequence  of  a  breach  of  trust  by  him  was  a 
specialty  debt. 

Henry  Clarke,  who  died  in  December,  1856,  devised  his  real  estate 
to  Joseph  Clayton  and  Bartliolomew  Clayton,  upon  trust  for  his  wife 
for  life,  and  after  her  death  upon  certain  other  trusts.  And  the  tes- 
tator declared  that  if  either  of  the  trustees  died  or  became  unwilling  to 
act,  then  it  should  be  lawful  for  the  surviving  or  continuing  trustee,  to 
nominate  any  fit  person  or  persons  to  supply  the  place  or  places  of  such 
trustees  or  trustee. 

By  an  indorsed  indenture,  dated  the  10th  of  December,  1859,  after 
reciting  the  death  of  the  co-trustee,  and  that  B.  Clayton  had  proposed 
to  appoint  Frederick  Cooke,  and  that  Frederick  Cooke  had  consented 
and  agreed  to  become  such  trustee,  as  he  did  thereby  testify  and  declare, 
it  was  witnessed  that  Cla3'ton  did  thereby  nominate  and  appoint  Fred- 
erick Cooke  to  be  trustee  in  the  room  of  the  deceased  trustee,  "  and 
the  said  Frederick  Cooke  doth  hereby  testify  and  declare  his  acceptance 
of  the  trusteeship." 

Bartholomew  Clayton  died  in  1866,  after  which  F.  Cooke  appeared 
to  have  possessed  himself  of  the  trust  estate  under  tlie  will,  and  to  have 
misapplied  it.  He  died  in  1867,  and  a  creditors'  suit  was  instituted  for 
the  admininistration  of  his  estate.  New  trustees  had  been  appointed 
under  the  will  of  H.  Clarke,  and  they  carried  in  a  claim  against  the  es- 
tate of  F.  Cooke  for  £4,695  principal  and  £320  interest.  The  claim 
was  not  disputed,  and  the  only  question  raised  was  whether  it  was  a 
specialty  debt  or  a  simple  contiact  debt.  The  Vice  Chancellor  Stuart, 
on  a  motion  to  vary  the  certificate  of  his  chief  clerk,  held  the  debt  to  be 
a  specialty  debt,  and  made  an  order  accordingly.^ 

principal  thing,  the  trust,  does  not  belong  to  the  common  Law,  but  to  the  Court  of  Chan- 
cery." In  Sturt  V.  Mellish,  2  Atk.  610,  Lord  Hardwicke,  C.  said,  p.  612 :  "A  tru.st  is 
where  there  is  such  a  confidence  between  the  parties  that  no  action  at  law  will  lie ;  but 
is  merely  a  case  for  the  consideration  of  this  court."  See  further  the  emphatic  state- 
ment of  Stuart,  V.  C,  in  Holland  v.  Holland,  4  Ch.448,  4.51 :  "  Except  in  an  exploded 
dictum  of  Lord  Hobart,  who  said  that  a  cestui  que  trust  might  bring  an  action  at  law 
for  a  breach  of  tru.st,  there  is  no  authority  and  no  principle  to  support  the  notion  that 
the  equitable  obligation  of  a  trustee  to  perform  a  trust,  whether  created  by  will,  or  writ- 
ing not  under  seal,  or  by  declaration  of  trust  under  seal,  makes  the  cestui  que  trust  his 
creditor  either  by  specialty  or  simple  contract."  —  Ed. 

1  The  statement  of  the  case  has  been  abridged,  and  the  arguments  of  counsel,  as 
well  as  the  concurring  opinion  of  Giffard,  L.  J.,  are  omitted.  —  Ed. 


SECT.  I.]  HOLLAND  V.    HOLLAND.    ^  237 

The  parties  to  the  administration  suit  now  moved  hj  way  of  appeal 
that  the  order  of  the  Vice  Chancellor  might  be  discharged. 

Ml'.  C.  Hall  and  J/r.  Speedy  for  the  appellants. 

Mr.  Dickinson^  Q-  C,  and  Mr.  Davey^  for  the  trustees  of  the 
will. 

Sir  C.  J.  SELwy^",  L.  J.  The  first  question  which  arises  in  this  case 
is,  whether  the  deed  of  the  10th  of  December,  1859,  by  which  the  tes- 
tator, whose  estate  is  being  administered  in  this  suit,  was  appointed 
trustee,  is  to  be  construed  as  containing  nothing  more  than  an  appoint- 
ment of  the  testator  to  a  certain  trusteeship,  and  an  acceptance  by  him 
of  that  trusteeship,  or  is  to  be  construed  as  containing  a  covenant,  or 
words  equivalent  to  a  covenant,  on  his  part,  to  do  some  special  act,  or 
to  perform  some  duty.  It  has  been  argued  that,  as  the  acceptance  of 
the  trust  is  twice  referred  to  in  the  deed,  it  must  be  construed  as  if 
something  more  than  a  mere  acceptance  of  the  trust  was  intended,  or 
must  be  implied  ;  and  if  that  acceptance  had  been  twice  referred  to  in 
the  recital,  or  twice  in  the  operative  part  of  the  deed,  there  would  have 
been  considerable  force  in  that  argument.  But  in  this  recital  one  thing 
is  referred  to  as  a  thing  proposed  to  be  done,  and  then,  according  to 
the  usual  form  adopted  by  conveyancers,  the  same  thing  is  witnessed  to 
have  been  done  by  the  operative  part  of  the  deed.  I  think  that  both 
the  recital  and  the  operative  part  have  one  and  the  same  object  and 
effect,  namely,  the  appointment  to  the  trusteeship  on  the  one  hand,  and 
the  acceptance  of  it  on  the  other,  but  that  here  is  no  express  covenant 
to  do  any  special  act,  or  to  perform  any  duty,  and  I  think  that  no  such 
covenant  can  be  implied.  The  cases  of  Courtney  v.  Taylor  ^  and  Mar- 
ryat  v.  Marryaf^  are  authorities  in  support  of  this  conclusion. 

Assuming,  then,  this  to  be  the  true  construction  of  the  deed,  the 
next  and  the  only  remaining  question  is,  whetlier,  in  consequence  of 
the  acceptance  of  the  trusteeship  by  an  instrument  under  seal,  the 
present  debt,  and,  as  the  argument  has  been  properly  and  necessarily 
put,  every  otlier  debt  which  could  be  proved  against  tliis  estate  in  re- 
spect of  this  tnistooship,  ought  to  be  considered  as  a  specialty'  del)t. 
In  my  judgment  this  (pi('stif)n  is  conchided  l)y  autliority.  The  case  of 
Adey  v.  Arnold^  was  decided  by  Lord  St.  Leonards  in  lH"r2,  wlien 
sitting  in  the  Court  of  Appeal,  and  it  tiierefore  possesses,  as  I  need  not 
say,  very  great  weight.  In  that  case  the  deed  was  executed  by  the 
trustee,  which,  in  my  judgment,  clearly  amounted  to  an  acceptance 
under  seal  by  iiini  of  the  trust;  and  that  decision,  so  far  as  I  know, 
has  never  since  been  questioncfl.  Even  in  the  present  case  the  learned 
Vice  Chancellor  has  not  in  any  degree  impugned  the  authority  of  Adey 
V.  Arnold,  for  his  Honor  appears  to  have  been  misiiifornied  upon  a 
matter  of  fact,  and  to  have  supposed  that  in  the  case  of  Adey  v.  Ar- 
nold the  deed  was  not  executed  by  the  trustee  ;  and  but  for  that  mis* 

1  7  Scott.  N.  R.  749  ;  6  M.in.  &  G.  51.  »  28  Beav.  224. 

«  2  I).  M.  &,  G.  432;   IG  Jur.  1123. 


238  ^         HOLLAND   V.   HOLLAND.  [CUAP.  IL 

apprehension  I  think  it  probable  that  his  Honor's  decision  would 
have  been  differcn^.  On  the  other  hand,  the  decision  in  Adey  v.  Ar- 
nold has  been  followed  by  Vice  Chancellor  Kindersley  in  the  case  of 
"Wynch  i\  Graut,^  by  the  Lord  Chancellor  of  Ireland  in  Newport  v. 
Bryan,-  and  by  Lord  Cairns  iu  the  case  of  Isaacson  v.  Harwood.'  I 
think  that  the  case  of  Wood  v.  Hardisty  *  cannot  be  considered  as  an 
interruption  to  the  line  of  authorities,  nor  as  in  any  degree  questioning 
the  authority  of  Adey  v.  Arnold,''  for  in  that  case  there  was  an  ex- 
press declaration  that,  "  subject  to  the  trust  aforesaid,  the  said  Wil- 
liam Forbes,  his  executors,  administrators,  and  assigns,  shall  stand 
possessed  of  the  said  policies  of  assurance,  and  of  the  moneys,  bo- 
nuses, and  accumulations  to  be  received  in  respect  thereof,  and  of  all 
other  the  premises  hereby  assigned,  or  intended  so  to  be,  upon  trust  for 
the  said  Susan,  her  executors,  administrators,  and  assigns,"  and  in 
any  case,  as  a  previous  decision  by  a  Vice  Chancellor,  it  must  be 
treated  as  subordinate  in  point  of  authority  to  the  subsequent  decision 
of  the  Lord  Chancellor  sitting  in  the  Court  of  Appeal.  We  may, 
therefore,  take  it  that  since  the  decision  of  Adey  v.  Arnold  there  has 
been  a  stream  of  authorities  flowing  in  the  same  direction,  never  iu  any 
way  interrupted  or  questioned. 

I  think,  both  upon  principle  and  upon  authority,  the  mere  fact  of  a 
trustee  being  a  party  to  and  executing  a  deed  by  which  he  is  appointed 
trustee  and  accepts  the  oflice,  is  not  of  itself  sufficient  to  justify  the 
Court  in  holding  that  a  debt  of  such  a  character  as  that  now  before  us 
is  a  specialty  debt. 

The  order  of  the  learned  Vice  Chancellor  should,  therefore,  be 
discharged.® 


'o^ 


1  2  Drew.  312;  18  Jur.  1010.  2  5  Ij..  Ch.  Rep.  119. 

8  Law  Rep.  3  Ch.  225.  *  2  Col.  542 ;  10  Jur.  486. 

6  2  D.  M.  &  G.  432. 

6  Bartlett  v.  Hodgson,  1  T.  R.  42  ;  Adey  v.  Arnold,  2  D.  M.  &  G.  432 ;  Richardson 
V.  Jenkins,  1  Drew.  477  (semble) ;  Wynch  i\  Grant,  2  Drew.  312  ;  Isaacson  v.  Harwood, 
3  Ch.  225;  Newport  v.  Bryan,  5  Ir.  Ch.  119 ;  Green  v.  Brooks,  25  Ark.  318  (semble) ; 
Benbury  v.  Benbary,  2  Dev.  &  B.  Eq.  235  (semble). 

In  the  following  cases  the  court,  finding  evidence  of  an  actual  agreement  to  per- 
form the  trusts,  adjudged  the  trustee  to  be  a  specialty  delitor.  Gifford  v.  Manley, 
Cas.  t.  Talbot,  108  ;  Mavor  v.  Davenport,  2  Sim.  227  ;  Turner  v.  Wardle,  7  Sim-  80; 
Cummins  ;•.  Cummins,  3  J.  &  Lat.  64  ;  Wood  v.  Hardisty,  2  Coll.  542. 

Although  the  action  of  account  was  the  normal  remedy  in  the  case  of  what  may  be 
called  common  law  trusts  as  distinguished  from  purely  equitable  trusts,  an  action  of 
covenant  could  also  be  brought  against  a  bailiff  or  factor  who  by  deed  agreed  to  ren- 
der a  true  account.  Hawkins  v.  Parker,  2  Bulst.  256,  1  Roile  R.  52  ;  Barker  v. 
Thorold,  1  Saund.  47  ;  Wilkins  v.  Wilkins,  Comb.  149;  Spurrawayu.  Rogers,  12  Mod. 
517.— Ed. 


SECT.  I.]  NORTON   V.   EAY.  239 


WILLIAM  T.   NORTON  v.   ANN   S.   RAY,   Executrix. 
In  the  Supreme  Judicial  Court,  Massachusetts,  May,  1885. 

[Reported  in  139  Massachusetts  Reports,  230.] 

Contract,  against  the  executrix  of  the  will  of  Isaiah  C.  Ray,  for 
money  had  and  received.     Writ  dated  May  12,  1883. 

Trial  in  the  Superior  Court,  without  a  jury,  before  Knotcltoji,  J.,  who 
allowed  a  bill  of  exceptions,  in  substance  as  follows. 

It  appeared  that,  on  December  27,  1865,  Isaiah  C.  Ray,  the  defend- 
ant's testator,  bought  at  the  plaintiff's  request,  with  the  plaintiff's 
funds,  and  for  his  benefit,  a  dwelling-house  and  lot  in  Edgartown, 
and  received  a  deed  of  it,  running  to  himself  and  his  heirs,  without  dis- 
closing any  trust.  On  January  2,  18G6,  Ray  executed  and  delivered  to 
the  plaintiff  the  paper,  a  copy  of  which  is  annexed  to  the  declaration. 
[This  paper  was  a  declaration  of  trust  of  the  premises  in  question  in 
favor  of  the  plaintiff.] 

On  November  1,  18G9,  Ray  executed  a  deed  of  this  lot  to  the  plain- 
tiff's wife  "  during  her  natural  life,  if  slie  remains  unmarried."  Ray 
sent  this  deed  to  the  plaiutift's  wife  at  Edgartown.  She  took  the  deed, 
got  it  recorded,  and  paid  for  recording  it. 

The  plaiutiff  had  no  knowledge  or  mformation  of  the  making  of  said 
deed  until  a  short  time  before  the  commencement  of  this  action,  and 
did  not  authorize  it  in  any  way.  At  the  time  it  was  made,  his  wife 
lived  apart  from  him,  and  has  done  so  ever  since.  There  was  no 
evidence  how  or  by  whom  the  property  was  occupied  or  managed  prior 
to  that,  but  the  plaintiff's  wife  has  continuously  resided  upon  it  since. 
At  one  time,  it  did  not  appear  when,  Ray  offered  the  plaintiff's  land- 
lady a  sum  of  money,  if  she  would  get  and  bring  to  him  the  declara- 
tion of  trust,  without  the  plaintiff's  knowing  it. 

*  The  plaintiff  claimed  to  recover,  as  damages,  the  value,  at  the  date  of 
the  writ,  of  the  estate  conveyed  by  the  deed  to  his  wife.  The  judge 
found  this  to  l)e  8278.8."),  and  found  for  the  defendant ;  and  at  the 
plaintiff's  request,  and  with  the  defendant's  consent,  reported  the  case 
to  this  court  for  its  opinion  upon  tlie  questions  of  law  involved. 

If,  as  matter  of  law,  upon  the  foregoing  facts,  the  plaintiff  was  enti- 
tled to  recover,  judgment  was  to  be  entered  in  his  favor  for  8278.8;"), 
and  interest  thereon  from  the  date  of  the  writ,  or  sucii  other  order  to 
be  made  as  law  and  justice  might  require  ;  otherwise,  judgment  for  the 
defendant.  1 

//.  M.  Knoirltou,  for  the  plaintiff. 

F.  A.  Millikfn,  for  the  defendant. 

W.  Allkn,  J.  The  plaintiff'H  only  reme<ly  is  in  equity.  'J'he  case 
discloses  a  trust,  and  cannot  be  brought  within  the  decisions  in  which 

*  The  rcportcr'a  statement  h.ia  been  somewhat  abridged.  —  Kd. 


2'40  ANONYMOUS.  [CHAP.  II. 

it  has  been  held  that  an  action  for  money  had  and  received  will  lie 
against  a  trustee  by  a  cestui  que  trust  to  recover  a  liquidated  sum  due 
to  him  under  the  trust.^  Judgment  for  the  defendant  - 


ANONYMOUS. 
In  the  Common  Pleas,  Easter  Term,  14G4. 

[Reported  in  Year  Book,  4  Edward  IV.,  folio  7,  placitum  9.] 

In  a  writ  of  trespass  quare  vi  et  armis  clausum  suum  fregit,  &c.,  et 
arhores  succidit,  &c.,  et  hei-has  conculcavit  et  consumjisit,  &c. 

Cateshy.  You  should  have  no  action,  for  we  say  that  a  long  time 
before  the  supposed  trespass  one  J.  B.  was  seised  of  certain  land,  &c., 
the  place  where,  «&c.,  in  fee,  and  being  so  seised  enfeoffed  the  plaintiff 
thereof  in  fee  to  the  use  of  the  defendant,  &c.,  upon  confidence,  and 
afterwards  the  defendant  by  the  sufferance  and  will  of  the  plaintiff  occu- 

1  Johnson  v.  Johnson,  120  Mass.  465,  and  cases  cited  ;  Davis  v.  Coburn,  128  Mass.  377. 

2  Hukill  V.  Page,  6  Biss.  183;  Davis  v.  Coburn,  128  Mass.  377;  Kendall  v.  Kendall, 
60  N.  H.  527  (semhle)  ;  Bishop  v.  Houghton,  1  E.  D.  Sm.  566  ;  Cearnes  v.  Irving,  31  Vt. 
604  Accord.  In  Hukill  v.  Page,  supra,  wliere  the  trustee  of  a  bond  wrongfully  released 
the  obligor,  Blodgett,  J.,  said :  "  Inasmuch  as  no  fraud  was  charged,  but  negligence 
only  is  alleged  in  the  declaration,  the  remedy  should  be  by  a  bill  in  chancery.  It  is  possi- 
ble that  an  action  on  the  case  might  lie  against  the  trustees  if  fraud  were  alleged." 

The  Ecclesiastical  Court  had  no  jurisdiction  against  a  trustee,  Ex  parte  Jenkins,  1 

B.  &  C.  655  ;  Barker  v.  May,  4  M.  &  Ily.  386. 

Formerly,  when  there  was  no  chancery  jurisdiction  in  Massachusetts,  a  cestui  qite 
trust  was  allowed  to  sue  the  trustee  in  assumpsit  and  recover  damages  for  a  breach  of 
trust.  Newhall  v.  Wheeler,  7  Mass.  189,  198;  Arms  v.  Ashley,  4  Pick.  71,  73.  In 
Penn.sylvania,  under  similar  conditions,  the  courts  went  much  further,  not  only  permit- 
ting the  cestui  que  trust  to  maintain  nssuinpsit,  but  also  to  obtain  in  the  common-law 
action  the  relief  properly  attainable  only  by  a  bill  in  equity.  Martzell  v.  Stauffer,  3 
Pa.  398 ;  Aycineua  v.  Peries,  6  Watts  &  S.  243,  258.  It  may  be  added  that  a  legacy, 
which  was  projierly  recoverable  only  in  the  sjjiritual  court,  could  be  collected  during 
the  Commonwealth,  when  there  were  no  spiritual  courts,  by  an  action  on  the  case  at 
common  law.     Nicholson  v.  Sherman,  1  Sid.  45. 

As  a  bill  in  equity  was  the  normal  remedy  in  the  case  of  egnitiibla  truiiLq.  so  the  action 
of  account  was  the  original  and  normal  remedy  in  the  case  of  the  common-law  trust. 
But  in  the  time  of  Lord  Holt  an  action  of  special  assinnpsit  was  admitted  against  a  factor 
or  bailiff  who  had  expressly  promised  to  render  an  account.  Wilkins  v.  Wilkins  (1689) 
Comb.  149,  Carth.  89,  1  Show.  71,  Holt,  6,  1  Salk.  9,  s.  c. ;  Spurr.away  v.  Rogers  (1701 ) 
12  Mod.  517.  In  the  latter  case  Lord  Holt  said  :  "If  one  receive  goods  of  another  and 
expressly  promise  to  be  accountable  for  them,  or  to  give  an  account  of  them,  case  will 
lie,  if  he  will  not  account,  upon  that  promise ;  but  upon  a  general  bailment  of  goods, 
without  a  parti(;ular  promise  to  account,  there  the  sol(f  remedy  is  by  account."  After- 
wards the  requisite  of  an  express  promise  appears  to  have  been  dispensed  with.  At 
all  events  special  assumpsit  was  maintained  in  Topham  v.  Braddick,  1  Taunt.  572; 
Tomkins  v.  Willshear,  5  Taunt.  430  ;  Owston  v  Cole,  13  East,  538  ;  Croskey  v.  Miles,  1 

C.  M.  &  R.  298  ;  Edgell  v.  Day,  L.  R.  1  C.  P.  80.     But  such  actions  were  rare  because 
of  the  competing  jurisdiction  of  equity.  —  Ed.  , 


SECT.  I.]  WEAKLY   V.   KOGERS.  241 

pied  this  land  and  cut  trees  upon  the  same  and  trampled  the  grass, 
■which  is  the  same  trespass,  &c. 

Jenney.  This  is  no  plea,  for  there  is  no  certain  matter,  for  such 
sufferance  and  will  cannot  be  tried  ;  and  in  such  case  to  make  a  good 
issue  or  traversable  matter,  he  should  plead  a  lease  by  the  plaintiff  to 
the  defendant  to  hold  at  will,  which  is  traversable  and  may  be  tried. 

Catesby.  Why  shall  he  not  plead  this  matter  when  it  follows  reason 
that  the  defendant  enfeoffed  the  plaintiff  to  the  defendant's  use,  and  so 
the  plaintiff  is  in  reason  in  this  land  only  to  the  defendant's  use,  and 
the  defendant  made  the  feoffment  upon  trust  and  confidence,  and  the 
plaintiff"  suffered  the  defendant  to  occupy  the  land,  so  that  in  reason 
the  defendant  occupied  at  his  will,^  which  proves  that  the  defendant 
shall  therefore  have  the  advantage  of  pleading  the  feoffment  in  trust  to 
justify  the  occupation,  &c. 

M(JYLE,  J.  This  would  be  a  good  matter  in  the  chancery,  for  the 
defendant  there  shall  plead  the  intent  and  purpose  upon  such  feoffment, 
for  by  conscience  one  shall  have  remedy  in  the  chancery,  according  to 
the  intent  of  such  a  feoffment ;  but  here  by  the  common  law  in  the  Com- 
mon Bench  or  King's  Bench  it  is  different,  for  the  feoffee  shall  liave  the 
land,  and  the  feoffor  shall  not  justify  against  his  own  feoffment,  whether 
the  feoffment  was  upon  confidence  or  not. 

Catesby.  The  law  of  chancery  is  the  common  law  of  the  land,  and  if 
there  the  defendant  shall  have  advantage  of  such  a  feoffment,  why  not 
likewise  here? 

MoYLE,  J.  That  cannot  be  in  this  court  as  I  have  told  you,  for  the 
common  law  of  the  land  varies  in  this  case  from  the  law  of  chancery, 
&c. 


WEAKLY,  ON  THE  Demise  of  YEA,  Bart.,  v.  ROGERS; 
In  the  Exchequer  Chamber,  Michaelmas  Term,  1789. 

[Reported  in  5  East,  138,  note  (n).] 

Sir  William  Yea  had  agreed,  about  seven  years  before,  with  the 
defendant  to  grant  him,  in  consideration  of  a  certain  sum  which  was 
paid,  a  lease  for  Ids  own  and  iiis  son's  life  ;  and  the  defendant,  on  the 
faith  of  tliat  agreement,  had  entered  into  possession  and  built  a  house 
on  tlie  premises.  After  whicii  Sir  William  (not  having  executed  any 
lease)  gave  the  defendant  six  montlis'  notice  to  quit,  considering  him 
as  tenant  from  year  to  year,  and  brougiit  this  ejectment.  Tiie  case 
was  argued  in  tliis  court  in  Trinity  Term,  2U  Geo.  111.  ;  when  the  court, 

'  A  rrstui  f/w  trust  in  jiosscHsioti  of  the  land  by  tho  porrnisHion  of  tlio  triislno  was 
treated  as  a  tenant  at  will  under  tlie  wtatntcs  .3  &  4  Wm.  IV.  c.  27,  §  2.  (iarrnrd  v. 
Tuck.  8  C.  IJ.  231.251-2.54  (explaining  Doo  v.  rhillips,  10  C^.  B.  l.iO).  Coinparo 
Melling  v.  Leake,  10  C.  B.  0.52.  —  Kd. 

16 


2-42  WEAKLY   V.    ItOGEllS.  [CIIAP.  II. 

after  taking  time  to  consider,  and  (as  it  was  understood)  not  being 
agreed  in  opinion,  directed  the  case  to  be  argued  before  all  the  judges 
in  tlie  Kxcliequtn-  Chamber;  which  argument  took  place  in  Michaelmas 
Term,  30  Geo.  III.,  when  a  second  argument  was  awarded,  but  the 
case  was  never  brought  before  the  judges  again.  [Vide  7  Term  Rep- 
51.]  But,  as  I  collected  at  the  time,  Lord  Loughborough,  C.  J., 
Gould,  Ashhurst,  and  Buller,  JJ.,  were  of  opinion  that  the  defend- 
ant's equitable  title  might  be  set  up  as  a  defence  to  the  ejectment. 
Lord  Kenyon,  C.  J.,  Eyre,  C.  B.,  and  Heath,  J.,  were  decidedly  of  a 
different  opinion :  and  with  these  it  is  probable  that  the  other  judges 
coincided ;  though  I  have  no  authority  for  saying  so ;  and  no  public 
opinion  was  ultimately  delivered  ou  the  case.  But  that  an  equitable 
title  cannot  be  set  up  in  ejectment  has  ever  since  been  considered  as 
settled.^ 

1  Roe  V.  Lowe,  1  H.  Bl.  446 ;  Doe  v.  Wharton,  8  T.  R.  2 ;  Roe  v.  Reade,  8  T.  R. 
122  ;  Doe  v.  Wroot,  5  East,  132 ;  Doe  v.  Fhillips,  10  Q.  B.  130  (semble) ;  Neave  v. 
Avery,  16  C.  B.  328;  Drake  v.  Pywell,  4  H.  &  C.  78  (semble) ;  Allen  v.  Walker,  L.  R. 
5  Ex.  187;  Watkius  v.  Holman,  16  Pet.  25;  Hickey  v.  Stewart,  3  How.  750;  U.  S.  v. 
King,  7  How  833,  847;  Greer  v.  Mezes,  24  How.  268,  275;  Singleton  v.  Touchard,  1 
Black,  342 ;  Foster  v.  Mora,  98  U.  S.  425  ;  Steel  v.  Smelting  Co.,  106  U.  S.  447,  452  ; 
Johnson  v.  Christian,  128  U.  S.  374  ;  Marshall  v  Ladd,  131  U.  S.  App.  Ixxxix  ;  Lerma 
V.  Stevenson,  40  F.  R.  356  ;  Hawkins,  Wills,  49  F.  R.  506;  Mitchell  v.  Robertson,  15 
Ala.  412  ;  Gunn  v.  Barrow,  17  Ala.  743  ;  Childress  v.  Monette,  54  Ala.  317  ;  Tutwiler 
V.  Muuford,  73  Ala.  308 ;  Staudifer  v.  Swann,  78  Ala.  88 ;  Hooper  v.  Columbus  Co., 
78  Ala.  213  ;  Woods  v.  Montevallos  Co.,  84  Ala.  561  ;  Reece  v.  Allen,  10  111.  236,  241 
{sembie)  ;  Wales  v.  Bogue,  31  111.  464  ;  Page  v.  Cole,  6  Iowa,  153  ;  Stinebaugh  v.  Wis- 
dom, 13  B.  Mon.  467 ;  Matthews  v.  Ward,  10  Gill  &  J.  443  ;  Russell  i-.  Lewis,  2  Pick. 
508  ;  Crane  v.  Crane,  4  Gray,  323  ;  Fitzpatrick  v.  Fitzgerald,  13  Gray,  400  ;  Essex  Co. 
V.  Duraut,  14  Gray,  447  ;  Phelps  v.  Townsley,  10  All.  554  ;  Moody  v.  Farr,  33  Miss, 
192.  (compare  Lockhart  v.  Camfield,  48  Miss.  470,  485) ;  Brown  v.  Combs,  5  Dutch.  36 
(semble)  ;  Commissioners  v.  Johnson,  36  N.  J.  Eq.  211  ;  Mulford  v.  Tunis,  35  N.  J. 
256;  Jackson  v.  Chase,  2  Johns.  84;  Jackson  v.  Pierce,  2  Johns.  221  ;  Jackson  v.  De 
Yo,  3  Johns.  422;  Jackson  v.  Van  Slyck,  8  Johns.  487;  Sinclair  v.  Jackson,  8  Cow. 
543;  Moore  v.  Spellman,  5  Den.  225  (overruling  Jackson  v.  Bateman,  2  Wend  570; 
Jackson  i'.  Leggett,  7  Wend.  377)  ;  Den.  v.  Troutman,  7  Ired.  155  ;  Starke  v.  Smith, 
5  Oh.  455 ;  Moore  v.  Burnet,  11  Ohio,  334 ;  Langford  v.  Love,  3  Sneed,  308  (semble) ; 
Beach  i;.  Beach,  14  Vt.  28;  Cearnes  v.  Irving,  31  Vt.  604,  606;  Taylor  y.  King,  6 
Munf.  358 ;  Hopkins  v.  Stephens,  2  Rand,  422  Accord. 

Warren  v.  Ireland,  29  Me.  62  ;  Sawyer  v.  Skowhegan,  57  Me.  500 ;  French  v.  Pat- 
terson, 61  Me.  203  ;  Blake  v.  Collins,  69  Me.  156  (couf.  Cary  v.  Whitney,  48  Me.  516  ; 
and  Jewell  v.  Harding,  72  Me.  124)  ;  Brown  v.  Weast,  8  Mi-^s.  181  ;  Heard  v.  Baird, 
40  Miss.  793,  799  (semble);  Scoby  v.  Blanchard,  3  N.  H.  170;  Edes  v.  Herrick,  61 
N.  H.  60  Contra. 

In  Doe  V.  Wroot,  supra,  Lord  EUenborough,  C.  J  ,  said,  p.  138  :  "  We  can  only  look 
to  the  legal  estate,  and  that  is  clearly  not  in  the  devisees,  but  in  the  heir-at-law  of  the 
surrenderor;  and  if  the  devisees  have  an  equitable  interest,  they  must  claim  it  else- 
where, and  not  in  a  court  of  law.  For  as  to  the  doctrine  that  the  legal  estate  cannot 
be  set  up  at  law  by  a  trustee  against  his  cestui  f/ue  trust,  that  has  been  long  repudiated, 
ever  since  a  case  which  was  argued  in  the  Exchequer  Chamber  some  years  ago." 

In  many  jurisdictions  a  cestui  que  trust  may,  at  the  present  day,  defeat  an  action  of 
ejectment  brought  by  the  trustee  by  a  ."(tatutory  equitable  plea  .  30  &37  Vict.  c.  66,  §  24, 
Lewin,  Trusts  (9  ed.)  762.  Morrison  u.  Wilson,  13  Cal.  494;  Willis  v.  Wozencraft,  22  Cal. 
607  ;  Love  v.  Watkins,  40  CaL  547  ;  Kenyon  i;.  Quin,  41  Cal.  325 ;  Talbert  v.  Hoppin,  42 


SECT,  l]  weakly  V.   KOGERS.  243 

Cal.  390 ;  Tjler  v.  Granger,  48  Cal.  259 ;  De  Arguello  v.  Bours,  67  Cal.  447  ;  Meeker 
V.  Dalton,  75  Cal.  154,  Wallace  v.  Maples,  79  Cal.  432  {semble) ;  Suessenbach  v.  First 
Bank,  5  Dak.  477  ;  Walls  v.  Endel,  20  Fla.  86  (see  Petty  v.  Mays,  19  Fla.  652) ;  Mor- 
gan V.  Marshall,  62  Ga.  401 ;  Petty  v.  Malier.  15  B.  Mon.  591  ;  Morton  y.  Dickson  (Ky. 
1890),  14  S.  W.  R.  531,  905  ;  Barrett  v.  Hinckley,  124  111  32  ;  (but  see  McGinnis  v. 
Fernandes,  126  111  228  ; )  Rosierz  v.  Van  Dan,  IG  Iowa,  175  ;  Van  Orman,  16  Iowa, 
186  ;  Kramer  v.  Conger,  16  Iowa,  434  ;  Penny  i;  Cook,  19  Iowa,  538  ;  Shawhan  v.  Long, 
26  Iowa,  488;  McClane  v.  White,  5  Minn.  178;  Douthitt  v.  Stinson,  73  Mo.  199; 
Preston  v.  Ricketts,  91  Mo.  320  (semble);  Tibran  v.  Tibran,  19  Mo  78;  Carman  w. 
Johnson,  20  Mo.  108 ;  Hayden  v.  Stewart,  27  Mo.  286  ;  Hams  v.  Vinyard,  42  Mo.  568  ; 
Barker  v.  Circle,  60  Mo.  258.  Collins  v.  Rogers,  63  Mo.  515  ;  Gibson  v.  Chouteau,  13 
Wall.  92,  103  (Mo.  case);  Sebree  y.  Patterson,  92  Mo.  451,  458  (citing  Mo.  cases); 
Allen  V.  Logan,  96  Mo.  591  ,  Lamme  v.  Dodson,  4  Mont.  560;  Stith  v.  Lookabill,  76 
N.  C.  465  ;  Dempsey  v.  Rhodes,  93  N.  C.  120  ;  Crane  v.  Goodman,  12  N.  Y.  266  ;  Bart- 
lett  V.  Judd,  21  N.  Y.  200,  Coralli  i;.  Allen,  57  N.  Y.  508  ;  Hoppough  v.  Struble,  60  N. 
Y.  430  ;  Shattuck  v.  Bascom,  105  N.  Y.  39  ,  Dewey  v.  Hoag,  15  Barb-  365  ;  Stone  v. 
Sprague,  20  Barb.  517 ;  Cythe  v.  Le  Fontain,  51  Barb.  186 ;  Powers  v.  Armstrong,  36 
Oh.  St.  357  ;  Wylie  v.  Mausley,  132  Pa.  65  ;  Davis  v.  Teays,  3  Grat  283  ;  Lombard  v. 
Cowham,  34  Wis.  486  ;  Du  Pont  v.  Davis,  35  Wis  631  ;  Ingles  ?;.  Patterson,  36  Wis. 
373  ;  Cornelius  v.  Kessel,  128  U.  S.  456  (Wisconsin  case). 

In  certain  jurisdictions,  by  an  anomaly,  a  cestui  que  trust  has  been  allowed  to  defeat 
the  trustee  without  the  aid  of  a  statute-  Sloan  v.  Petrie,  16  111.  262  ;  Stow  v.  Russell, 
36  111.  18;  Staley  v.  Murphy,  47  111.  241  ;  Chicago  Co.  v.  Hay,  119  111  493  (explaining 
Finlon  v.  Clark,  118  111.  32);  Godson  v.  Beacham,  24  Ga.  150,  154  {semble) ;  Helms  v. 
O'Bannon,  26  Ga.  132,  137. 

A  trustee  of  a  chattel,  as  well  as  a  trustee  of  land,  may  recover  the  property  from 
the  cestui  que  trust,  or  damages  for  its  conversion,  in  an  action  at  law.  Gunn  v.  Barrow, 
17  Ala.  743;  Newman  v.  Montgomery,  6  Miss.  742;  Gnphill  v.  Isbell,  8  Rich.  463,  I 
Bail.  230;  except  in  jurisdictions  allowing  eqnitable  pleas,  Bowen  v.  Bowen,  19  Mo. 
399. 

Conversely  the  rpstui  que  trust  of  a  chattel  cannot  recover  it  from  the  trustee,  Red- 
wood V.  liiddick,  4  Munf .  222.  —  Eu. 


244  EARL   OF   KILDARE   V.   EUSTACE.  [cilAP.  IL 


SECTION  II. 

Cestui  que  Trust  is  a  claimant  against  the  Trustee  —  not  the  owner 

of  the  Trust-res. 

(a)  His  Claim  is  enforceable  regardless  op  the  8it0S  of  the  Trust-res. 

THE  EARL   OF   KILDARE  v.   SIR  M.    EUSTACE. 

In  Chancery,  before  Lord  Jeffreys,  C,  November  8,  December 

3,  1686. 

[Reported  in  1  Vernon,  405,  419  ] 

The  plaintiff's  bill  was  to  be  relieved  touching  the  trust  of  certain 
lands  in  Ireland.  The  defendants  had  appeared  and  answered  the 
bill,  and  had  not  any  way  objected  to  the  jurisdiction  of  this  court : 
but  the  cause  coming  now  to  be  heard,  the  Lord  Chancellor  ob- 
jected, this  court  could  not  hold  plea  of  lands  in  Ireland. 

For  the  plaintiff  it  was  urged,  that  he  was  proper  for  relief  in  this 
court  by  reason  that  both  plaintiff  and  defendant  were  here  in  Eng- 
land, and  that  a  court  of  equity  does  only  agere  in  personam  ;  its 
proceedings  are  to  reform  the  conscience  of  the  party,  and  if  at  any 
time  a  court  of  equity  may  be  said  to  agere  in  rem,  it  is  only  in  the 
case  of  sequestration,  which  is  for  the  contempt  of  the  party ;  and 
that  therefore  the  defendant  being  served  with  a  subpoena  here,  and 
living  in  England,  this  court  had  proper  jurisdiction  of  the  cause, 
though  the  land  lies  in  Ireland ;  and  the  rather,  for  that  it  was  never 
yet  pretended  that  there  was  any  local  action  in  equity :  and  they  in- 
stanced for  precedents  the  late  cases  of  the  Lord  Arglasse  and  Mus- 
champ,^  and  Lord  Arglasse  and  Pit,  and  Archer's  Case,^  and  insisted 
that  otherwise  there  would  be  a  failure  of  justice,  for  the  defendant 
living  here  could  not  be  served  with  process  issuing  out  of  the  Chan- 
cery in  Ireland. 

But  the  Lord  Chancellor  overruled  the  plaintiff's  counsel,  and 
said  as  to  the  cases  of  the  Lord  Arglasse,  the  fraudulent  contracts  were 
made  here  in  England ;  and  as  to  the  present  case  there  would  be  no 
failure  of  justice,  for  they  might  have  a  subpoena  out  of  this  court 
returnable  in  the  Chancery  of  Ireland ;  as  in  his  own  experience  in 
cases  between  master  and  'prentice  in  the  city  of  London,  he  had 
known  subpoenas  to  have  issued  out  of  this  court  returnable  in  the 
Mayor's  court  in  London  for  persons  that  lived  out  of  the  jurisdiction  ; 

1  1  Vera.  75. 

2  See  Barker  v.  Dormer,  1  Show.  192. 


SECT.  II.]  EAEL   OF   KILDARE   V.   EUSTACE.  245 

and  therefore  pronounced  the  rule  for  the  dismissing  the  bill :  but  at 
the  importunity  of  the  plaintiff's  counsel  gave  them  a  week's  time  to 
search  for  precedents. 


The  Lord  Chancellor  and  the  Judges  having  been  attended  with 
precedents,  Sir-  John  Holt  argued  for  the  plaintiff,  as  to  the  pre- 
liminary point  only  (to  wit),  whether  this  court  had  jurisdiction,  and 
might  hold  plea  of  the  lauds  in  question  which  lay  in  Ireland.' 

The  defendant's  counsel  in  a  manner  waived  the  preliminary  point, 
and  would  not  enter  into  the  debate  whether  this  court  might  not  de- 
cree the  trust  of  lands  in  Ireland,  the  trustee  living  here  ;  but  that  it 
was  certainly  a  matter  discretionary  in  the  court,  whether  they  would 
do  it  or  not ;  and  that  as  this  case  was  circumstanced,  they  appre- 
hended the  court  would  not  interpose. 

After  long  debate,  the  judges  [Bedingfield,  C.  J.,  and  Atkins, 
C.  B.]  concurring  with  his  Lordship,  that  the  court  had  a  proper  ju- 
risdiction in  this  case,  and  that  the  judges  in  England  were  proper 
expositors  of  the  Irish  laws,  and  that  by  the  true  construction  of  this 
statute  the  trust  was  vested  in  the  king,  and  not  the  land  itself,  and 
the  proof  being  full  as  to  the  identity  of  the  person,  decreed  for  the 
plaintiff,  as  to  one  moiety  ;  the  trust  as  to  the  other  moiety  being  for 
Sir  Morrice  Eustace  himself,  and  not  for  Fitzgerald.^ 

'  The  arguments  of  counsel  are  omitted  —  Ed. 

2  ♦•  The  Court.s  of  E(juity  in  England  are,  and  ahvays  have  been,  courts  of  con- 
science, operating  in  personam  and  not  m  rem  ;  and  in  the  exercise  of  this  personal 
jurisdiction  they  have  always  been  accustomed  to  compel  the  performance  of  contracts 
and  trusts  as  to  subjects  which  were  not  locally  or  ratioite  domicilii  within  their  juris- 
diction "  Per  Lord  Selborne,  in  Ewing  v.  Orr  Ewing,  9  Ap.  Cas.  34,  40.  See  to 
the  .'<ame  effect,  Archer's  Case,  1  Veru  77  (cited) ;  Arglasse  v.  Muschamp,  1  Vern.75; 
Tenn  v.  Baltimore,  1  Ves.  44-3  ;  Cranstown  r.  Johnston,  3  Ves.  Jr.  170, 181-182  ;  Jack- 
Hon  r.  I'etrie,  10  Ves.  163,  164;  Paget  v.  Ede,  18  Eq.  118;  Re  Longdendale  Co.,  8  Ch. 
I)  1.^)0,  Mercantile  Co.  v  River  T'late  Trust,  '92,  2  Ch  303  ;  Ma.ssie  i'  Watts,  C  Cranch, 
148,  Cole  r.  Cunningham,  133  U.  S.  107,  117-119;  Briggs  c.  French,  1  Sumn.  504; 
Stapler  v  Ilnnt,  16  Ala.  799;  More  v.  Superior  Court,  64  Cal.  34.5 ;  Le  Breton  v.  Su- 
perior Court,  60  Cal  27  ;  Cooley  r.  Scarlett,  38  III.  316  ;  Johnson  i-.  Gibson,  116  111. 
294;  Baker  r.  Bo<kril)ran(l.  lift  111.  36.');  Cloud  i?.  Greasley,  12.'j  111.  313;  Whiter. 
White.  7  Gill  &  J.  208,  211  ;  Brown  r.  Desmond,  100  Ma.ss.  267  ;  Wood  v.  Warren,  2 
McCart.  81  ;  Lindley  r.  O'Reilly,  M  N.J.  636,  640;  Vreeland  v.  Vreeland  (N.J.  1892), 
24  Ad  R.  ."i.')!  ,  (but  see  Servis  r.  Nclf^on,  1  McCr.rt.  94  ;)  Ilawley  v.  James,  7  Paige, 
208  ;  Sutphen  v.  Fowler,  9  Paige,  280;  I)c  Klyn  v.  Watkins,  3  Sandf.  Ch.  18.") ;  New- 
ton r.  Bronson,  13  N.  Y  587,  Blount  v  Blount,  1  Hawks,  365,  376;  Ponn  v.  Hay- 
wanl,  14  Oh.  St.  .102;  Burnley  v  Stevens'm.  24  f)h.  St.  474;  Vaughn  r.  Barclay.  6 
Whart,  392  ;  Ej.iscopal  Church  v.  Wiley,  2  Hill,  T'h.  446  ;  Farley  v.  Sbippon,  Wytho 
(2d  cd),  2.54;  Guerrant  »•  Fowler,  I  Hen.  &  Munf.  4;  Dickenson  v.  Hoomcs,  H  tirat. 
253.  The  early  ra,He  of  the  Company  of  Horner«,  2  Rolle,  R.  471,  is  contra.  See  also 
Norris  1-.  Chanibrcs,  29  Bcav.  246,  and  lie  Hawthorne,  23  Ch.  D.  743.  —  Ed. 


246  FELCII   V.   HOOPER.  [CIIAP.  H 


MARK  C.  FELCII  v.  DAVID  IIOOrER  and  Another. 

In  the  Supreme  Judicial  Court,  Massachusetts,  January  12, 

October  23,  1875. 

[Reported  in  119  Massachusetts  Reports,  52.] 

Bill  in  equity,  filed  December  2,  1873,  against  David  Hooper  and 
Matilda  H.  Hooper,  of  Portland,  in  the  State  of  Maine. 

The  prayer  of  the  bill  was  that  the  defendants  be  ordered  by  a  de- 
cree of  the  court  to  execute,  acknowledge,  and  deliver  to  the  plain- 
tiff a  deed  of  conveyance  in  conformity  with  the  terms  of  their  bond, 
on  payment  of  the  balance  of  the  purchase-money ;  and  for  further 
relief. 

On  February  17,  1874,  the  plaintiff  filed  an  amendment  to  the  bill, 
alleging  that  the  contract  by  which  David  Hooper  sold  the  land  in 
question  to  the  plaintiff  was  entered  into  and  concluded  between  the 
latter  and  an  agent  of  David  Hooper  in  Somerville,  and  was  intended 
to  be  carried  out  in  this  Commonwealth ;  that  David  Hooper  was  at 
Somerville  in  person  at  the  time  when  the  taxes  were  paid  by  him  and 
when  the  offer  and  tender  of  the  balance  of  the  purchase-money  were 
made  to  him  by  the  plaintiff  ;  that  on  the  same  day  David  Hooper 
acknowledged  the  deed  to  Matilda  H.  Hooper,  before  a  justice  of  the 
peace  in  said  county  of  Middlesex,  and  caused  the  same  to  be  placed 
on  record  while  Matilda  H.  Hooper  was  at  her  home  in  Portland  ;  that 
since  that  time  the  defendants  have  pretended  that  David  Hooper  had 
actually  sold  the  land  to  Matilda  H,  Hooper,  but  David  Hooper  has 
proposed  and  offered  that  if  the  plaintiff  would  pay  a  sum  much  larger 
than  the  price  stipulated  for  in  the  bond,  he  would  procure  a  conveyance 
of  the  land  from  Matilda  H.  Hooper  to  him ;  that  after  the  execution 
and  delivery  and  recording  of  said  bond  and  a  payment  of  a  part  of  the 
purchase-money  as  therein  provided,  and  especially  after  the  said  tender 
of  the  remainder  of  the  purchase-money,  which  he  is  and  has  been  ready 
to  pay,  the  said  David  Hooper  held  and  the  said  Matilda  H.  Hooper  now 
holds  the  title  to  said  land,  and  is  seised  thereof  upon  a  trust  for  the  bene- 
fit of  the  plaintiff  ;  that  the  defendants  have  constantly  and  fraudulently 
refused  to  make  a  conveyance  thereof  to  him,  though  often  requested  so 
to  do,  unless  he  would  pay  a  large  sum  in  addition  to  the  price  agreed 
upon  ;  and  now,  in  pursuance  of  a  fraudulent  scheme  by  them  conceived 
to  compel  the  plaintiff  to  pay  an  increased  price  for  the  land  or  lose  the 
improvements  he  had  made  thereon  by  consent  of  David  Hooper,  before 
the  time  when  he  should  have  conveyed  the  same  to  the  plaintiff,  and 
also  lose  that  portion  of  the  purchase-money  paid  on  delivery  of  the 
bond,  the  defendants,  though  duly  notified  of  this  suit,  refuse  to  answer 
the  plaintiff's  bill  and  refuse  to  submit  themselves  to  the  jurisdiction  of 
this  court,  and  remain  obstinately  without  the  Commonwealth. 


SECT.  II.]  FELCH   V.   HOOPER.  247 

The  prayer  of  the  amended  bill  was  that  the  said  land  may  be  decreed 
to  belong  beneficiall}'  to  the  plaintiff,  and  that  some  proper  person  may 
be  appointed  and  authorized  to  convey  to  hi  in  the  legal  title  thereof, 
and  that  the  balance  of  the  purchase-money  now  remaining  in  his  hands, 
after  deducting  therefrom  the  costs  of  this  suit,  may  be  safely  deposited 
or  invested  under  the  direction  of  this  court,  to  be  paid  over  or  trans- 
ferred to  the  defendants,  only  upon  the  execution  and  delivery  by  them 
of  a  proper  deed  or  deeds  to  convey  or  confirm  the  title  of  said  land  to 
the  plaintiff  ;  and  for  further  relief. 

The  defendants  thereupon  demurred  to  the  amended  bill,  assigning 
as  ground  of  demurrer  "  that  it  appears  by  the  plaintift"s  own  showing 
that  this  court  has  no  jurisdiction  of  the  parties  defendant  in  this  bill  or 
either  of  them,  and  that  there  bus  been  no  legal  and  sufficient  service  of 
the  same  on  said  defendants  or  either  of  them  to  authorize  this  court  to 
take  jui-isdiction  therein." 

The  case  was  reserved  by  Colt,  J.,  for  the  consideration  of  the  full 
court,  upon  the  bill  as  amended  and  the  demurrer.* 

A.  C  Buzzell,  for  the  defendants. 

G.  W.  Park  and  G.  F.  Fijyer,  for  the  plaintiff. 

Colt,  J.  The  question  raised  b^^  this  demurrer  is  not  whether  a 
contract  for  the  conveyance  of  land  in  this  Commonwealth  can  be 
specifically  enforced  against  a  defendant  upon  whom  no  service  is  made 
witliin  this  State,  and  who  is  not  and  never  has  been  a  resident.  That 
question  was  decided  in  the  case  of  Spurr  v.  Scoville.'^ 

The  question  here  is  whether  under  such  a  contract  in  writing  the 
plaintiff  who  has  paid  or  tendered  the  consideration,  and  has  by  the 
defendant's  permission  entered  upon  the  land  and  made  impiovemonts 
thereon,  can,  under  our  statutes,  upon  the  allegations  of  this  bill  enforce 
his  equitable  title  to  the  land  in  any  form. 

In  Spurr  v.  Scoville  it  was  said  that  the  only  effectual  decree  which 
could  be  rendered  upon  the  allegations  in  that  case  would  require  a 
conveyance  of  the  land  in  (piestion  l)y  the  defendant  personally  ;  and 
that  courts  of  equity  would  not  proceed  in  a  cause,  where  the  decree 
asked  for  required  an  absent  defendant,  not  subject  to  their  jurisdic- 
tion, to  be  active  in  its  performance,  but  could  deal  only  with  persons 
who  could  be  compelled  by  i)roct'Ss  to  obey  tlieir  orders.  The  decision 
is  placed  expressly  on  the  gioun<l  that  the  suit  was  a  proceeding  in 
personam  merely,  in  which  no  decree  was  sought  against  the  proiK'ity, 
and  no  allusion  is  made  to  statutory  provisions  which  upon  proper 
allegations  might  perhaps  have  afforded  relief. 

The  case  at  bar  differs  in  this  respect,  and  the  plaintiff  seeks  to 
enforce  an  equitable  right  in  the  land  itself.  The  bill,  as  nuieuded, 
avers  that  the  contract  relied  on  and  the  payment  and  other  facts 
alleged  were  sufficient  to  charge  the  land  with  a  trust  in  the  plaintilf'a 

^  The  .statement  of  the  case  has  bceu  mucli  abridged,  and  the  arguraeut  for  tho  do- 
fendanta  i.s  omitted,  —  Ed. 
2  3  Cush.  578. 


248  FELCH   V.   HOOPER.  [CIIAP.  U. 

favor,  which  the  defeudauts  refused  to  perform  by  refusing  to  make  the 
required  conveyauce.  Aud  a  prayer  is  added  that  the  hiud  may  be 
decreed  to  beloug  beueficially  to  the  plaintiff,  aud  may  be  conveyed 
to  him  by  some  person  duly  appointed  by  the  court.  To  the  bill  as 
amended  there  is  a  special  demurrer  on  the  ground  that  the  court  has 
no  jurisdiction  of  the  parties. 

Tiie  doctrine  is  well  established  in  equity  that  from  the  time  a  valid 
contract  for  the  sale  of  land  is  made,  tliat  which  ouglit  to  have  been 
done  is  treated,  as  between  the  parties,  as  already  done  ;  and  the  seller 
and  his  representatives,  and  subsequent  purchasers  from  him  with  no- 
tice, will  be  held  to  be  trustees  for  the  purchaser,  for  the  purpose  of 
affording  the  latter  a  remedy  against  the  estate.  Atcherley  v.  Vernon  ;  ^ 
Daniels  y.  Davison;^  Waddiugton  v.  Banks  i*^  Lewin  on  Trusts  (3d 
ed.),  174,  175. 

Our  statutes  give  this  court  power  to  enforce  the  performance  of  a 
contract  for  the  sale  of  land,  made  by  a  deceased  person,  and  to  order 
the  executor  or  administrator  to  make  a  conveyance,  which  it  is  declared 
shall  have  the  same  force  and  effect  as  if  made  by  the  person  who  made 
the  agreement  to  convey,  thus  giving  effect  to  the  deed  of  the  legal 
representative  although  the  legal  title  is  in  the  heirs-at-law,  and  treat- 
ing the  subject-matter  of  the  contract  as  personal  or  real,  according  to 
the  character  which  has  been  given  to  it  by  its  terms.     Gen.  Sts.  c.  117, 

Upon  the  facts  stated  in  this  bill,  the  land  in  question  is  charged 
with  an  implied  trust  in  the  plaintiff's  favor ;  and  the  court  is  not 
powerless  to  enforce  that  trust  merely  because  the  parties  holding 
the  legal  title  are  beyond  its  reach.  It  is  said  that  courts  of  equity 
will  never  allow  a  trust  to  fail  for  want  of  a  trustee.  Such  a  trustee 
this  court  is  now  authorized  to  appoint,  by  a  statute  which  provides 
that  when  a  person,  seised  of  an  estate  upon  a  trust,  express  or  im- 
plied, is  out  of  the  Commonwealth,  or  not  amenable  to  the  process  of 
any  court  therein  having  equity  powers,  this  court  shall  have  power  to 
order  a  conveyance  to  be  made  thereof  in  order  to  carry  into  effect  the 
objects  of  the  trust,  and  may  appoint  some  suitable  person  in  the 
place  of  the  trustee  to  convey  the  same  in  such  manner  as  it  may 
require.     Gen.  Sts.  c.  100,  §  15. 

This  statute  expressly  includes  implied  trusts,  and  cannot  be  con- 
fined in  its  application  to  trusts  which  are  created  by  deed  or  will  and 
do  not  depend  upon  the  proof  of  facts  which  may  be  open  to  dispute. 
Walsh  V.  Walsh.*  Most  implied  trusts  are  of  the  latter  description. 
The  statute  gives  the  court  power  to  render  an  effectual  decree,  and 
that  is  enough  to  sustain  the  jurisdiction  when  the  parties  or  the 
subject-matter  are  within  its  reach.  Ward  v.  Arredondo.^  The  decree 
will  be  binding  on  absent  parties  to  the  extent  of  its  effect  on  the  land 

1  10  Mod.  518,  527.  2  i6  Ves.  249,  255. 

8  1  Brock.  97.  *  116  Mass.  377. 

6  Hopk.  Ch.  213. 


SECT.  II.]  FELCH   V.   HOOPER.  249 

01113",  even  though  all  parties  interested  have  been  notified  in  accord' 
ance  with  the  rules  of  court.  In  other  States,  under  similar  stat- 
utes, similar  relief  is  granted.  Matteson  v.  Scofield  ;  ^  Rourke  v. 
McLaughlin.^ 

Upon  this  demurrer  the  existence  of  the  trust  must  be  assumed,  and 
the  entry  must  be  Demurrer  overruled.^ 

1  27  Wis.  671.  2  38Cal.  196. 

8  Dew  V.  Clark,  4  Russ.  511  (semble,  St.  6  Geo.  IV".  c-  74,  §  5)  ;  Trustee  Act,  1850, 
c.  60,  §§  9,  10;  Lewiu  (9th  ed.)  1153-4;  Hart  v.  Sansom,  110  U.  S.  151,  155,  Mont- 
gomery Co  V.  Street  Liue,  43  Fed.  Rep.  329  ;  Loaiza  v.  Superior  Court,  85  Cal.  11  ; 
McCanu  r.  Randall,  147  iMass.  81,  98-99;  Wilson  v.  Martin  Wilson  Co.,  151  Mass. 
515,  517,  522  ;  Matteson  v.  Scofield,  27  Wis.  671  ;  Langdell  Eq.  PL  (2d  ed.)  §  63,  n.  4 
Accord.  See  to  the  same  effect  analogous  instances  of  equitable  relief,  under  statutes, 
where  the  res  was  within  and  tlie  defendant  without  the  jurisdiction,  Arudt  v.  Griggs, 
134  U.  S.  316 ;  Quarl  v.  Abbett,  102  Ind.  233. 

But  if  the  res  as  well  as  the  trustee  is  beyond  the  jurisdiction,  in  which  the  cestui  que 
trust  is  so  ill-advised  as  to  seek  relief,  it  is  obvious  that  any  decree  the  court  may  make 
is  brutum  Juluun  Cases  cited  in  preceding  paragraph  ;  Watts  v.  Waddle,  6  Pet.  389, 
1  McL.  200;  Watkins  v.  Holmau,  16  Pet.  25;  Page  v.  McKee,  3  Bush,  135;  White  v. 
White,  7  Gill  &  J.  208 ;  Davis  v.  Headley,  22  N.  J.  Eq.  115 ;  Lindley  v.  O'Reilly,  .50 
N.  J.  636 ;  Henry  i;.  Doctor,  9  Oh.  49. 

By  statute,  in  several  jurisdictions,  the  appointment  of  a  new  trustee  by  a  court 
having  jurisdiction  over  the  person  of  the  original  trustee,  vests  the  title  in  the  new  ap- 
pointee without  more.  Green  v-  Borland,  4  Met.  330 ;  Parker  v.  Converse,  5  Gray, 
336;  Hammond  v.  Granger,  128  Mass.  272;  Warren  v.  Howard,  99  N.  C.  190,  194, 
Mc>ysh  i;.  Guerard,  4  Strob  Eq.  66,  79-80.  But  in  the  absence  of  such  a  statute,  the 
decree  of  the  court  cannot  of  itself  divest  the  old  trustee  of  the  title.  Hart  v.  Sansom, 
1 10  U.  S.  151,  155  ;  McCann  v.  Randall,  147  Mass  81,  99  ;  Burnley  v.  Stevenson,  24  Oh. 
St.  474  ;  Davaut  v.  Guerard,  1  Speers,  242.  The  true  principle  is  very  clearly  stated  by 
Field,  J.,  in  McCann  v.  Randall,  supra  :  "  Independently  of  statute,  a  court  of  ecjuity 
cannot  appoint  a  person  to  execute  a  transfer  of  the  property  of  another  .  .  .  Courts 
of  law  can  transfer  the  title  to  property.  In  real  actions,  they  declare  the  title  and 
transfer  the  possession  ;  in  personal  actions,  by  virtue  of  a  levy  of  execution,  they  trans- 
fer l)oth  title  ami  possession  ;  but  decrees  of  courts  of  equity,  exccjit  wliore  st.atntes 
have  made  other  provisions,  ojjerate  only /«  jiersouam.  "i'liis  ])ower  of  creating  and 
extinguishing  titles  the  chancellor  never  had  nor  claimed  to  have,  except  wiicn  it  was 
given  him  by  st.atute.  It  is  true  tliat  lie  frequently  directcil  tiic  sale  of  jtropcrty,  but 
it  was  by  his  control  over  the  person  of  tlie  owner  that  he  made  the  sale  effective,  1.  e-, 
when  the  sale  had  been  nia<le  he  compelled  the  owner  to  execute  a  deed  pursuant  to  tlie 
sale,  and  hence,  wlx-n  the  owner  was  out  of  tiie  jurisdiction,  or  labored  under  any  in- 
capacity, e.  (/.,  <>i  infancy,  tiie  cliancellor  was  powerlesf?.'  Langdell  Ivi-  I'l.  (2d  ed.) 
§  43,  note  4  ;  3  I'om.  Eq.  Jur.  §  1317  ;  Hart  v.  Sansom,  110  U.  S.  151."  It  is  for  want 
of  this  power,  independently  of  statute,  that  the  bill  was  dismissed  in  Spurr  v.  Scovill, 
3  Cush.  578.  It  w;w  under  the  statute  jias.sed  to  suiiidy  this  want  of  jiower  tiiat  Felcii 
V.  Hooper,  119  Ma.s9.  52,  was  decided.  This  distinction  between  tiie  statutory  and  the 
inlierent  power  of  a  court  of  e(inity  is  not  always  Ixirno  in  mind.  Sec  Wiiito  v.  VVIiite, 
7  (iili  &  J.  208,  211  ;  Druiil  Co.  v.  Oettingc^r,  5.!  Md.  46,  61  ;  Stewart  v.  Firemen's  Co., 
M  .Vld.  564  ;  Abfll  r.  Hrown,  55  Md  217  ;  Glenn  v.  Wiliimii.H,  60  Md.  9.'i,  I  I'.t  ;  Curtis 
V.  Smith,  60  Biirb.  0.  A  new  trustee  appointed  by  an  individual  un(h;r  tiie  forms  of  tlio 
instrument  creating  the  original  trust,  gets  of  course  no  title  by  such  appointment  alone. 
fioliler  »'.  Hrc.^sl^•r,  105  ill.  419,432;  Nat.  Bank  i'.  Eldridge,  115  M.-iss.  424  (comiiare 
Loring  v.  Sahsbury  Mills,  125  Mass.  138) ;  Bunigarner  v.  Cogswell,  49  Mo.  259. 


ReMOVAI-    and    API'fUNTMKNT    OF    Nf>N-HK«II>KNT   TfjIISTEES. 

lifm'wtil —  I'ennanent  removal  from  the  jiirisiliction  is  a  ground  for  the  removal  of 
%  trustee  from  his  otfice.     O'Reilly  v.  Aldcrsou,  8  Uare,  101  (compare  lie  Mais,  16  Jur. 


250  FELCH  V.   HOOPER.  [CHAP.  II. 

608) :  Rr  ■Ronshnw,  4  Ch.  783  ;  Tic  EiixlioM,  7  Ch.  223  ;  Tic  Vye,  42  L.  T.  Rep.  247  ; 
Ketclium  v.  Mobile  Co.,  2  Woods,  532 ;  bloau  v.  rrothiugham,  72  Ala.  589 ,  Gale's 
Pet.,  R.  M.  Charlt.  109  ;  Comegys  v.  State,  10  Gill  &  J.  175,  183  (semble) ;  Dorsey  v. 
Thompson,  37  Md.  25  ;  Fanners'  Go.  v.  Hnghes,  11  Hun,  130  ;  Hughes  v.  Cliicago  Co., 
47  N.  Y.  Sup'r  Ct.  531  ;  Maxwell* i-.  Finnic,  6  Cold.  434;  Woods  v.  Fisher,  3  W.  Va. 
536.     But  see,  rontm.  Gulp's  Est.,  5  Pa.  W.  R.  582. 

By  statute  iu  some  jurisdictions,  only  residents  may  act  as  express  trustees. 
Thompson  v.  Edwards,  85  Ind.  414  ;  Kinker  t;.  Bissell,  90  Ind.  375  ;  Moikel  v.  Green, 
94  Ind.  344. 

Removal  from  the  jurisdiction  has  been  thought  not  to  amount  to  inability  or  in- 
capacity where  there  is  a  power  of  appointing  a  new  trustee  in  place  of  one  unable  to 
act  or  incapable  of  acting  as  trustee.  AVithington  v.  Withington,  16  Sim.  104  ,  Re 
Watts,  9  Hare,  106;  Re  Bignold,  7  Ch.  223  (seviUe)  But  see,  contra,  Mennard  v. 
Welford,  1  Sm.  &  G.  426  ;  Farmer's  Go.  v.  Hughes,  11  Hun,  130 ;  and  compare  Millard 
V.  Eyre,  2  Ves.  Jr.  94  (absconding  trustee). 

Appointment  of  non-kesident  Trustees. 

The  selection  of  a  non-resident  trustee  by  one  having  a  power  of  appointment  was 
sustained  in  the  following  cases,  where  all  the  beneficiaries  were  also  resident  abroad  : 
Meinertzhageu  v.  Davis,  1  Coll.  335  ,  Re  Smith,  20  W.  R.  685.  And  the  court  itself 
appointed  non-residents  as  trustees  under  similar  circumstances  in /?e  Liddiard,  14  Ch. 
D.  310;  Re  Hill,  W.  N.  [1874],  228;  Re  Drewe,  W.  N.  [1876],  168;  Re  Cunard,  48 
L.  J.  Ch.  192;  Re  Austen,  38  L.  T.  Rep.  601  ;  Re  Freeman,  37  Ch.  D.  148;  (but  see 
Re  Guibert,  16  Jur.  852) ;  Ex  parte  Tunno,  Bail.  Eq.  395,  But  the  court  declined  to 
remove  resident  trustees  for  the  sake  of  appointing  non-residents  in  their  place  in  Re 
Long,  38  L.  J.  Ch.  125  ;  Ex  parte  Robert,  2  Strob.  Eq.  86.  In  Pennsylvania  the  court 
may  appoint  non-residents  as  trustees,  but  only  on  condition  of  their  giving  bonds. 
Strobel's  Est.,  11  Phila.  122.  — Eu. 


SECT.  II.]  ANONYMOUS.  251 


SECTION   II.   {continued). 

{b)  Cestui  que  Trust  cannot  proceed  directly  against  a  Stranger  either 

AT  Law  or  in  Equity. 


ANONYMOUS. 
In  the  Common  Pleas,  Michaelmas  Term,  1499. 

[Reported  in  Year  Book  15  Henry  VII.,  folio  13,  placitum  1.^] 

The  first  case  argued  by  Thomas  Frowyk  after  he  was  made  Chief 
Justice  was  this  :  If  the  feoffor  upon  confidence  takes  animals  damage 
feasant  in  the  land  of  the  feoffees  who  hold  to  his  use,  and  by  whose 
sufferance  he  occupies,  may  he  avow  the  taking  in  his  own  name  and 
in  his  own  right,  or  not? 

All  the  justices  of  the  bench  said  he  could  not  avow  the  taking 
in  his  own  right, ^  but  he  might  make  cognizance  in  the  right  of  the 
feoffees,  as  their  servant.  For  he  has  uo  interest  in  tlie  land,  but 
there  is  simply  a  confidence  between  him  and  them.  The  feoffees  may 
punish  him  at  common  law  for  his  occupancy,  which  proves  that  he  had 
no  interest.  And  if  he  might  take  the  animals  damage  feasant  and 
have  amends,  their  owner  would  be  twice  punished,  for  the  feoffees 
may  punish  him. 

1  Y.  B.  1.5  H.  VII  2-4  and  Y.  B.  1.5  H.  VIT.  12-23,  s.  c.  —  Ed. 

2  Anon.,  Keilw.  41,  pi.  2;  42,  pi.  7,  46,  pi.  2;  Finch,  Law  (1636),  200  Accord. 
Nor  could  the  cestui  que  trust  maintain  tre.spass  against  a  stranger.  Anon.,  Y.  B.  15 
II.  VII    12-23  ;  Anon.,  Keilw.  41,  pi.  2  ;  42,  pi.  7  ;  46,  pi.  2,  s.  c. 

The  right  to  maintain  tn.-spa-ss  (juare  clausula  J'rcfji I  seems  to  liave  been  confined  at 
first  lo  freeholders  and  ternior.s.  The  action  was  denied  to  a  tenant  at  will  by  Hank- 
ford,  J.  in  Y.  B.  11  H.  IV.  90-46  ;  but  was  conceded  in  Y.  B  IS  H.  VI.  1-1,  and  in 
subsequent  ca-ses.  A  tenant  at  sufferance  was  excluded  from  the  action  in  Y.  B. 
30  II.  VI.,  Fitz  Ab.  Tresp.  10 ;  Anon.,  Keilw.  46,  pi.  2,  42,  pi.  7  (see  also  Tailor's 
Case,  Clayt.  55,  pi.  90),  but  his  right  to  the  action  was  admitted  in  Ileydon's  Case.  13 
l?ep.  67,  69,  and  finally  it  became  a  rule  tliat  any  po.ssessor  might  have  trcspa.'ss  for  an 
entry  by  a  wrong-doer.  Graham  v.  Peak,  1  East,  244.  Accordingly  at  tlie  jircsent 
day  a  cpstui  que  trust  in  po.ssession  may  doubtless  maintain  the  action  against  a  stranger, 
a.s  in  Cox  v.  Walker,  20  Me.  504  ;  Stearns  v.  Talnier,  10  Mot.  32  ;  Sevcntli  Bank  v. 
N  Y.  Co.,  .53  N.  Y.  Sup'r  Ct.  412.  In  Newhall  v.  Wiieelcr.  7  Mass.  189,  a  nstui  ,/ue 
trust  in  possession  was  allowetl  to  maintain  a  writ  of  entry  against  one  who  wrongfully 
dispo88C8.sed  him.  —  Ed. 


or,o  DOE  V.  PEGGE.  [CIIAP.  IL 


DOE,   ON  THE  Demise  of  BRISTOW,  v.   PEGGE. 
In  the  King's  Bench,  Easter  Term,  1785. 

[Reported  in  1  Term  Reports,  758  note  (a).] 

Ejectment  was  brought  for  a  moiety  of  the  manor  of  Winkburne, 
&c.,  under  the  will  of  D.  Burnell,  as  one  of  his  co-heirs.  By  the  tes- 
tator's marriage  settlement  in  1748  two  terms  in  trust  were  created: 
one  for  ninety-nine  years,  to  secure  an  annuity  of  £200  to  his  mother ; 
the  other  for  one  thousand  years,  for  raising  ^'3,000  for  his  wife,  in 
case  she  should  have  no  issue  ;  the  money  to  be  raised  out  of  the  rents 
and  profits,  or  by  sale  or  mortgage.  The  testator  died  in  1774,  having 
no  issue,  and  devised  all  his  estates  to  trustees  and  their  heirs,  to  the 
use  of  them  and  their  heirs  in  trust,  after  the  death  of  his  widow,  who 
was  entitled  to  a  life-estate  under  the  marriage  settlement,  for  such 
person  or  persons  as  according  to  the  laws  of  descent  should  be  his 
heirs-at-law,  and  the  heirs  of  their  bodies,  to  take  as  tenants  in  com- 
mon, &c.,  if  more  than  one.  The  defendant  filed  a  bill  in  chancery  in 
1776  against  all  persons  who  were  supposed  to  have  any  claim  as  heirs- 
at-law,  and  against  the  trustees,  and  an  issue  was  directed  under 
which  he  was  found  heir-at-law  by  descent  from  a  daughter  of  a  com- 
mon ancestor.  The  lessor  of  the  plaintiff  also  had  filed  a  bill  in  1783, 
nis  claim  having  never  been  known  before  ;  but  upon  the  death  of  the 
widow  he  brought  this  ejectment,  and  proved  his  pedigree  from  another 
daughter  of  the  same  common  ancestor.  At  the  trial  the  defendant  set 
up  these  terms  ;  the  testator's  mother  being  still  living,  and  her  annuity 
regularly  paid  by  the  receiver  appointed  by  the  Court  of  Chancery  ;  the 
^3,000  having  likewise  been  raised  for  his  widow,  and  the  terra  assigned 
in  mortgage. 

Mr.  Justice  Heath,  who  tried  the  cause  at  the  last  assizes  at  Not- 
tingham, nonsuited  the  plaintiff,  with  leave  to  move  to  set  aside  the 
nonsuit,  and  enter  a  verdict  for  the  plaintiff,  if  the  couH  should  be  of 
opinion  that  he  was  entitled  to  recover. 

Upon  the  motion,  it  was  stated  that  the  receiver  had  been  appointed 
by  the  Court  of  Chancery  during  the  life  of  the  widow,  and  for  such 
premises  only  as  her  life-estate  did  not  extend  to ;  and  that  the  lessor 
of  the  plaintiff  did  not  desire  to  disturb  the  terms,  but  was  ready  to 
partake  of  the  charge. 

Wilson,  Dayrell,  and  Brovgh,  for  the  plaintiff. 

Balguy  and  Gaily,  contra.^ 

Lord  Mansfield,  C.  J.  An  ejectment  is  a  fictitious  remedy  to  try 
the  title  to  the  possession  of  lands  ;  it  is  of  infinite  consequence  that 
it  should  be  adapted  to  attain  the  ends  of  justice,  and  not  entangled  in 
the  nets  of  form.    Great  difficulties  have  arisen  as  to  the  legal  form  of 

1  The  arguments  of  counsel  are  omitted.  —  Ed. 


SECT.  II.]  DOE   V.   PEGGE.  253 

passing  land,  from  the  modes  of  conveyancing  in  England  since  the 
Statute  of  Uses.  Trusts  are  a  mode  of  eonve3^ance  peculiar  to  this 
country.  In  all  other  countries,  the  person  entitled  has  the  right  and 
possession  in  himself.  But  in  England  estates  are  vested  in  trustees, 
on  whose  death  it  becomes  difficult  to  find  out  their  representatives ; 
and  the  owner  cannot  get  a  complete  title.  If  it  were  necessary  to 
take  assignments  of  satisfied  terms,  terrible  inconveniencies  would  en- 
sue from  the  representatives  of  the  trustees  not  being  to  be  found.  Sir 
E.  Northey's  clerk  was  trustee  of  near  half  of  the  great  estates  in  the 
kingdom  ;  on  his  death  it  was  not  known  who  was  his  heir  or  represent- 
ative. So  that  where  a  trust  term  is  a  mere  matter  of  form,  and  the 
deeds  were  muniments  of  another's  estate,  it  shall  not  be  set  up  against 
the  real  owner.  It  is  therefore  settled  that  a  satisfied  trust  shall  be 
taken  to  be  a  trust  for  the  benefit  of  the  heir-at-law.  A  trust  shall 
never  be  set  up  against  him  for  whom  the  trust  was  intended.  It  is  a 
mere  form  of  conveyance.  And  it  is  admitted  that,  where  the  term  is 
in  trust  for  the  benefit  of  the  lessor  of  the  plaintiff,  the  defendant  shall 
not  set  it  up  in  ejectment  as  a  bar  to  his  recovery. 

To  go  a  step  further :  third  persons  may  have  titles,  and  therefore 
the  court  say,  that  where  there  is  a  tenant  in  possession  under  a  lease, 
which  is  a  bar  to  the  recovery  of  the  lessor,  he  being  to  recover  by  the 
strength  of  his  own  title,  yet  to  prevent  this  from  being  turned  improp- 
erly against  the  person  entitled  to  the  inheritance,  whose  right  is  not 
disputed  by  the  tenant,  if  the  lessor  dispute  the  property  only  against 
another,  and  give  notice  to  the  tenant  that  he  does  not  mean  to  disturb 
his  tenancy,  the  court  will  never  suffer  the  tenant  to  set  up  the  lease  as 
a  bar  to  the  recoveryv 

There  is  another  distinction  to  be  taken,  whether,  supposing  a  title 
superior  to  that  of  the  lessor  of  the  plaintiff  exists  in  a  third  person, 
who  might  recover  the  possession  against  him,  it  lies  in  the  mouth  of  a 
defendant  to  say  so  in  answer  to  an  ejectment  brought  against  himself 
by  a  party  having  a  better  title  than  his  own.  I  found  this  point  set- 
tled before  I  came  into  this  court,  that  the  court  never  suffers  a  mort- 
gagor to  set  up  the  title  of  a  third  person  against  his  mortgagee.  For 
he  made  the  mortgage,  and  it  does  not  lie  in  his  mouth  to  say  so,  thougli 
such  third  person  miglit  liave  a  right  to  recover  possession.  Nor  shall 
a  tenant  wlio  has  paid  rent,  and  acted  as  such,  ever  set  up  a  superior 
title  of  a  third  person  against  his  lessor,  in  bar  of  an  ejectment  l)rought 
by  him  ;  for  the  tenant  derives  his  title  from  him.  Laying  down  tlicse 
principles,  let  us  now  see  the  application  of  them  to  this  case.  Tiiere 
are  disputes  between  the  plaintiff  and  the  defendant,  who  are  co-heirs  ; 
as  such,  the  plaintiff  claims  half  of  tlie  property,  and  wishes  to  be  ad- 
mitted into  possession  of  the  premises  with  the  defendant.  He  jirovos 
his  descent.  Then  what  is  the  defence  setup?  A  trust  for  a  tiiinl 
person,  an  annuity,  is  set  up.  The  plaintiff  admits  the  charge,  and 
says  that  he  only  claims  subject  to  the  incumbrances.  The  trustees  do 
not  assert  their  title.     Then  shall  others  be  admitted  to  set  it  up?    It 


25-4  DOE  V.   ?EGGE.  [CIIAP.  11. 

is  dear  that  the  other  co-heirs  shall  not  be  permitted  to  dispute  the  title 
with  hiin.  lie  ami  the  defendant  have  au  equitable  title  as  teuauts  in 
coiuinou,  and  the  plaintiff  must  recover  a  moiety. 

"WiLLES,  J.,  concurred. 

AsiiiiUKST,  J.  In  such  a  case  as  this  a  legal  bar  shall  never  be  set 
up  in  ejectment  against  the  justice  of  the  case.  The  trustees  may  per- 
form their  functions  as  well,  after  botli  the  parties  are  in  possession. 
The  old  doctrine  is  relaxed  in  many  instances. 

BuLLEK,  J.  I  entirely  agree  with  my  Lord.  An  objection  has  been 
taken  at  the  bar,  that  the  plaintiff  in  ejectment  must  recover  by  the 
strength  of  his  own  title :  the  old  cases  certainly  say  so ;  but  for  the 
last  forty  or  fifty  years  constant  exceptions  to  this  rule  have  been  ad- 
mitted. One  case  which  is  received  as  clear  law,  and  is  an  exception 
to  it,  is  that  of  a  tenant  who  cannot  set  up  the  title  of  the  mortgagee 
against  the  mortgagor  ;  because  he  holds  under  the  mortgagor,  and  has 
admitted  his  title. 

There  was  a  case  before  me  at  Guildhall,  and  I  believe  another  upon 
the  Oxford  circuit,  of  the  same  nature,  where  a  lessee  for  years  had 
got  possession  of  some  mortgage  deeds,  and  endeavored  to  set  up  that 
title  against  the  mortgagor ;  but  though  this  showed  that  the  plaintiff 
had  no  right  to  recover  as  against  the  mortgagee,  yet  I  permitted  him 
to  do  so  in  that  instance  ;  and  the  decision  was  acquiesced  under. 

It  is  not  therefore  true  that  an  outstanding  unsatisfied  term  is  always 
an  answer  to  a  plaintiff  in  ejectment.  So  long  ago  as  the  time  of 
Justice  Gundry,  when  an  outstanding  satisfied  term  was  offered  by  a 
defendant  in  ejectment  as  a  bar  to  the  plaintiff's  recovery,  that  judge 
refused  to  admit  it,  saying,  that  there  was  no  use  in  taking  an  out- 
standing term,  but  for  the  sake  of  the  conveyancers'  pockets  -.  since 
which  time  it  has  been  the  uniform  doctrine,  that  if  the  plaintiff  be  en- 
titled to  the  beneficial  interest  he  shall  recover  the  possession.  The 
next  objection  is,  that  this  is  a  reversionary  interest ;  but  that  is  not 
material ;  for  it  has  been  further  ruled  of  late  years  that  a  lessor  of  a 
plaintiff  may  recover  in  an  ejectment  a  reversionary  interest,  subject  to 
a  lease  and  right  of  present  possession  existing  in  another. 

The  annuitant  is  only  entitled  to  her  £200  per  annum,  and  not  to 
the  possession  itself  whilst  there  is  no  default ;  indeed,  she  does  not 
require  it.  But  the  heir-at-law  is  entitled  to  the  possession  sul)ject  to 
that  charge.  The  annuitant,  however,  is  in  a  different  situation  from 
the  mortgagee  ;  for  the  latter  is  entitled  to  receive  the  whole  in  diminu- 
tion of  the  principal  and  interest. 

So  that  the  plaintiff  must  have  a  general  judgment  for  that  part 
which  is  not  in  the  possession  of  the  receiver  ;  and  as  to  that  which  is, 
he  must  enter  into  a  rule  not  to  disturb  that  possession ;  submitting  to 
the  mortgage  and  the  annuity.  Mule  absolute.^ 

1  Lade  v.  Holford,  Bull.  N.  P.  110  a;  Armstrong  v.  Peirse,  3  Burr.  1901  {semble) ; 
Doe  i;.  Pott,  Dong.  721  {semble) ;  Goodright  v.  Wells,  Doug.  777  (sembk)  ;  Goodtitle 
V.  Knott,  Cowp.  43,  46  (semble)  Accord, 


SECT.  II.]  DOE   V.   PEGGE.  _  255 

In  Goodtitle  i'.  Jones,  7  T.  R.  45,  it  is  reported  that  "  Lord  Kenyon  observed,  that 
on  this  special  verdict  the  question  between  the  two  litigating  parties  was  not  open  to 
discussion  ;  for  that  it  was  stated  in  the  verdict  that  au  old  term,  which  was  created  in 
the  last  century,  had  been  from  time  to  time  assigned,  and  was  noticed  as  a  subsisting 
term  so  lately  as  m  the  year  1780,  in  the  mortgage  by  Owen  Jones  to  Derbyshire.  That 
as  long  as  that  was  in  existence,  it  was  an  answer  to  an  ejectment  brought  by  any  other 
person  That  though  under  certain  circumstances  a  judge  might  direct  a  jury  to  pre- 
sume an  outstanding  satisfied  term  to  have  been  surrendered  by  the  trustee,  yet  if  no  such 
presumption  were  made,  but  it  was  stated  as  a  fact  that  the  term  still  continued,  such  a 
legal  estate  in  the  trustee  must  prevail  in  a  court  of  law.  That  what  was  said  by 
Lord  Mansfield  m  Lade  v.  Holford,  Bull.  N.  P.  110,'  that  he  would  not  suffer  a  plain- 
tiff in  ejectment  to  be  nonsuited  by  a  term  standing  out  in  his  own  trustee,  or  a 
satisfied  term  set  up  by  a  mortgagor  against  a  mortgagee,  but  direct  a  jury  to 
presume  it  surrendered,'  must  be  understood  with  this  restriction,  that  in  either  case 
the  jury  might  presume  the  term  surrendered,  but  that  without  such  surrender  the 
estate  in  the  trustee  must  prevail  at  law,  and  that  to  the  proposition  so  qualified  he 
fully  assented." 

See  also,  to  the  same  effect,  Hodsden  v.  Staples,  2  T.  R.  684 ;  Doe  v.  Sybourn,  7 
T,  K.  2 ;  Barnes  v  Crow,  4  Bro.  C.  C.  10,  11  ,  Feun  v.  Holme,  21  How.  481;  Hooper 
V  Scheimer,  23  How.  235  ,  Smith  v  McCann,  24  How  398,  403  ;  Sheirburn  (,•.  De 
Cordova,  24  How  423  ;  Lincoln  v.  French,  105  U.  S.  614;  Langdon  v.  Sherwood,  124 
U.  S.  74,  85,  Rouldin  v  Phelps,  12  Sawy.  293;  Young  v.  Dunn,  10  Fed  R.  717, 
Sweatt  V.  Burton,  42  Fed.  R.  285,  Colburn  v  Broughton,  9  Ala.  351,  Williams  v. 
Hartshorn,  30  .Ala.  21 1  ;  Arnett  v.  Biiiley,  60  Ala.  435  ,  Percifull  v.  Piatt,  36  Ark.  456  ; 
Vallette  c.  Bennett,  69  111  632,  Kirkland  v.  Cox,  94  HI.  400;  People  r.  Force,  100  HI. 
549,  Barrett  »  Hinckley,  124  111.  32;  Somes  v.  Skinner,  16  Mass.  348,  2<orton  v, 
Leonard,  12  Pick  152,  Chapiu  v.  First  Society,  8  Gray,  580;  Stearns  v.  Palmer,  10 
Met  32,  35  ,  Raymond  r  Ilolden,  2  Cush,  264  ,  Davis  v.  Charles  River  Co.,  11  Cush. 
506,  Chapin  v.  First  Society,  8  Gray,  580,  First  Society  v  Hazen,  100  Mass.  322, 
Nugent  V  Cloon,  117  Ma.ss  219,  Atwood  v.  Frost,  57  Mich  229,  'J'hoinpson  v. 
Wheatley,  13  Miss  506;  Wolfe  v.  Dowell,  21  Mi«6.  103;  Heard  v.  Baird,  40  Miss. 
793  ,  Sie'mcrs  i>  Schrader,  88  Mo,  20  ;  Bailey  r.  Winn,  101  Mo.  649  ;  Den  r.  Bordine, 
Spencer,  394,  Brown  v  Combs,  5  Dutch  36,  39-41  ,  Wright  v  Douglass,  3  Barb. 
5.54  ,  Peck  t;  Newton,  46  Barb.  173  ;  Townshend  v.  Frommer,  57  N.  Y  Sup'r  Ct.  90; 
Matthews  u  Mcl'lierson,  05  N.  C.  189  (but  see  Grubb  v.  Lookabill,  100  N.  C.  267); 
Pownal  /  Mvers,  16  Vt  408  {semhU);  Gillett  v  Treganza,  13  Wi.s.  472;  Eaton  v. 
Smith,  19  Wis   537,  Kinney  v.  De.xter,  W'is   1892,  51  N.  W  R   82. 

In  rennsylvania,  a  reshn  que  trust  may  maintain  an  action  at  law.  Kennedy  v.  Fury, 
1  Dall  72,  I 'rfsbvtf-rian  Congregation  f  Johnstnn,  1  Watts  &  S  9,  56,  Scliool  Direc- 
tors (,'.  Dunklebcrger,  6  Barr,  29  ,  Tritt  v.  Crot/.er,  13  l"a.  451,457  ,  Fernsllcr  '•.  Seibert, 
114  Pa   196. 

Mr  Lewin,  rcffrring  to  the  principal  ca-'o,  says-  "The  doctrines  advaiK'cd  by  Lord 
Mansfield  in  the  last  century  were  long  ago  overruled  .  .  .  '  Lord  Mansfidil,'  as  Lord 
Redesilale  observed  [Shannon  v.  Bradstreet,  1  Sch  &  Lef.  66|,  '  had  on  his  mind  pre- 
judices derived  from  his  familiarity  with  the  Scotch  law,  wliore  law  and  c(iiiity  are 
admini.stered  in  the  .same  conrts.'  "     Lewin,  Trusts  (9th  od  ),  762. 

Nor  can  a  cestui  r/ue  trust  bring  an  action  for  damages  for  an  injury  to  realty  held 
in  trust.  Davis  v.  Charle.s  River  Co.,  11  Cush.  .506.  Compare  Ilastcy  v.  Ingalls,  15 
Nob.  123;  Fremont  Co.  v.  Sebriu'ht  (Neb..  1892),  51  N.  W.  R.  833. 

In  the  following  ca.sos  the  j)Iaiiitiff  was  allowed  to  have  ejectment  althongh  the  dry 
leg.ll  title  was  ontstamling.  Mowry  t;.  Cuniinings,  34  F.  Rep.  713  ;  Doggctt  r.  Hart, 
5  Fla.  215  [semUt)  ,  I'etfTHon  v.  Orr,  12  Ga.  464  ,  Goodson  v.  Beacham.  24  Ga.  150; 
McLeod  r.  Bo/ena,  26  Ga.  177;  Dudley  v.  Bradsliaw,  29  Ga  17,  25;  Miller  r.  Swift, 
39  Ga.  91  {ncmhle)  ;  Fahn  i;.  Bleckley.  55  Ga.  HI  ;  Howell  v.  Kllsbnry,  79  Ga  475,  480; 
Glover  v.  Stamps,  73  Ga.  209;  Merrill  v.  Dearing,  47  Minn.  137  {semhie,  HUUitory) ; 
Murray  v.  Blaekledge,  71  N.  Ca.  492,  Johnson  v.  Prairie,  91  N.  Ca.  159  ;  H.ipkins  f. 
Ward.  6  Muuf.  38. 

A  cestui  (jue  trust  of  personalty  cannot  maintain  an  action  against  a  stranger  for 


256  BAILEY  V.   NEW  ENGLAND   MUTUAL  LIFE  INS.   CO.       [CHAP.  IL 


E.   W.   BAILEY  V.   NEW   ENGLAND   MUTUAL   LIFE 
INSURANCE  COMPANY. 

In  the  Supreme  Judicial  Court,  Massachusetts,  November,  1873. 

[Reported  in  114  Massachusetts  Reports,  177] 

Contract  upon  a  policy  of  life  insurance.  Writ  dated  June  9, 1873. 
By  the  terms  of  the  policy,  which  was  dated  June  28,  1860,  the  de- 
fendants, in  consideration  of  the  premium  paid  and  to  be  paid  an- 
nually "  by  Joseph  A.  Bailey,  Jr.,"  "being  the  assured  in  tliis  policy," 
"  do  insure  the  life  of  said  Joseph  A.  Bailey,  Jr.,  in  the  amount  of  $2500 
for  the  term  of  his  life."  "  And  the  said  company  do  hereby  promise 
to,  and  agree  with  the  said  assured,  his  executors,  administrators,  and 
assigns,  well  and  truly  to  pay  the  said  sura  insured  to  the  said  assured, 
his  executors,  administrators,  or  assigns,  sixty  days  after  due  notice 
and  proof  of  the  death  of  the  said  assured  during  the  continuance  and 
before  the  termination  of  this  policy.  For  the  benefit  of  his  widow, 
if  any." 

In  the  Superior  Court  the  case  was  submitted  upon  the  following 
agreed  statement  of  facts  :  — 

"  The  defendants  admit  all  the  facts  necessary  to  enable  the  plain- 
tiff to  recover,  except  her  right  to  maintain  this  action  in  her  own 
name,  and  insist  that  no  action  can  be  brought  upon  said  policy 
except  in  the  name  of  the  executor  or  administrator  of  Joseph  A. 
Bailey,  Jr.,  the  insured.  This  question  is  submitted  to  the  court,  judg- 
ment to  be  entered  for  the  plaintiff  in  the  sum  of  $2500,  with  interest 


a  tort.  Liptrot  v.  Hohnes,  1  Ga.  381  (semhle) ;  Martin  i'.  Poagnc,  4  B.  Mon.  524 ; 
Daniel  v.  Daniel,  6  B.  Mon.  2.30;  Mitchell  v.  Mitchell,  35  Miss.  108  {semhle);  Pollard 
V.  Thomas,  61  Miss.  150  ;  Garrett  v.  Carlton,  65  Miss  188 ;  Myers  v.  Hale,  17  Mo.  Ap. 
204;  'but  see  contra,  Chouteau  v.  Boughton,  100  Mo.  406)  ;  Merritt  u.  Windley,3  Dev. 
399 ;  Jones  v.  Strong,  6  Ired.  367 ;  Puage  v.  Bell,  8  Leigh,  604.  In  Penn.sylvania  an 
equitable  title  to  personalty  is  enough  to  support  an  action  for  converting  or  injuring 
it.     Brewer  v.  Fleming,  51  Pa.  326  ;  Miller  v.  Zufall,  113  Pa.  3l7. 

The  trustee  is,  of  course,  the  proper  plaintiff  in  actions  to  recover  land  or  damages 
for  a  tort  relating  to  land.  Wooderman  v.  Baldock,  8  Taunt.  676  ;  Coll)urn  v. 
Broughton,  9  Ala.  351  ;  Kice  v.  Brown,  77  111.  549  ;  Hawkins  v.  County  Comm.,  2 
All.  254  ;  Board  v.  East  Saginaw,  42  Mich.  257  ;  Lancaster  v.  Coini  Co.,  92  Mo,  460 ; 
State  V.  IMayor,  32  N.  J.  49 ;  State  v.  Eastern  Co.,  36  N.  J.  181  ;  Walker  v.  Fawcett,  7 
Ired.  44;  Woodman  v.  Good,  6  Watts  &  S.  169;  Penn.  Co.  v.  Duncan,  111  Pa.  352, 
Linning  v.  Crawford,  2  Bail.  296 ;  Rogers  v  White,  1  Sneed,  68. 

And  also  in  actions  for  the  conversion  of  or  injury  to  personal  property.  White  v. 
Morris,  11  C.  B.  1015;  Barker  v.  "Furlong,  '91,  2  Ch.  172,  Baker  v.  Washington,  5 
li.  &  P.  142 ;  Chambers  v.  Mauldin,  4  Ala.  477  ;  Stoker  v.  Yerby,  11  Ala.  322  ;  Parsons, 
V.  Boyd,  20  Ala.  112  ;  Ryan  v.  Bibb,  46  Ala.  323;  McRaeny  v.  Johnson,  2  Fla.  520, 
Wynn  v.  Lee,  5  Ga.  21 7,  236  ;  Schley  v.  Lyon,  6  Ga.  530 ;  Meridith  v  Hickman,  1  A.  K. 
Marsh.  242;  Newman  r.  Montgomery,  6  Miss.  744;  Presley  v.  Rogers,  24  Miss.  520; 
Presley  v.  Stribling,  24  Miss.  527  ;  Lacey  v.  Giboney,  36  Mo.  320  ;  Pace  v.  Pierce,  49 
Mo.  393  ;  Coleson  f.  Blanton,  3  llayw.  152  ;  Hexter  v.  Schneider,  14  Oreg.  184  ;  Hower 
V.  Geesaman,  17  S.  &  R.  251  ;  Ilartness  v.  Warren,  106  N.  Ca.  427;  Nixon  v.  Rose,  12 
Grat.  425  —Ed. 


SECT.  II.]       BAILEY   V.   NEW   EXGL.WD   MUTUAL   LIFE   INS.   CO.  257 

from  May  29,  a.  d.  1873,  or  for  the  defendants,  as  the  court  shall  de- 
termine upon  the  foregoing  agreed  statement."  ^ 

Judgment  was  order-ed  for  the  defendants,  and  the  plaintiff  appealed 
to  this  court. 

F.  V.  Balch,  for  the  plaintiff. 

D.  Foster,  for  the  defendants, 

ExDicoTT,  J.  We  think  the  question  raised  in  this  case  has  been 
settled  by  the  recent  decisions  of  this  court.  In  Burroughs  i).  State 
Assurance  Co.,  97  Mass.  359,  it  was  held,  on  a  policy  payable  upon  the 
death  of  the  assured  to  his  executors,  administrators,  or  assigns,  for 
the  use  of  the  wife  and  children  of  the  assured,  that  an  assignee  of  the 
same  could  maintain  the  action,  although  in  fact  it  was  defended  by 
the  guardian  of  an  infant  child  of  tlie  assured,  the  wife  being  dead. 
If  the  assured  had  left  no  wife  or  child,  the  assignee,  upon  recovery, 
would  have  received  the  whole  amount  to  his  own  use  ;  as  the  assured 
left  a  child,  the  assignee  would  hold  the  amount  recovered  subject  to 
the  equitable  rights  of  the  child,  which  could  not  be  determined  in  that 
suit,  but  might  be,  if  necessary,  in  a  suit  brought  afterwards  by  the  cliild 
against  the  assignee.  In  Gould  v.  Emerson,  99  Mass.  154,  such  a  suit 
was  bro'jght  by  a  child  against  an  administrator  who  had  received  the 
amount  due  upon  a  similar  policy,  and  judgment  was  for  the  plaintiff, 
on  the  ground  that  the  same  having  been  properly  paid  to  the  admin- 
istrator, he  held  it  as  trustee  ;  that  the  plaintiff  did  not  claim  as  cred- 
itor, legatee,  or  distributee,  but  as  cestui  que  trust  of  money  in  regard 
to  which  the  trustee  had  no  duty  but  immediate  payment. 

The  principle  upon  which  these  decisions  rest  is  that  in  policies  of 
this  kind  the  executor,  administrator,  or  assignee  becomes  a  trustee 
under  an  express  trust,  and  the  legal  title  being  in  him,  he  can  main- 
tain an  action  in  his  own  name  against  the  company.  It  therefore 
necessarily  follows  that  the  cestuis  que  trust  cannot  maintain  such  ac- 
tion, but  must  have  their  rights  determined  between  themselves  and  the 
trustee  in  other  forms  of  proceeding.  This  brings  this  class  of  trusts 
within  the  general  rules  governing  all  trusts,  and  renders  the  practice 
simple  and  uniform.  To  allow  cestuis  que  trust  to  maintain  actions  in 
their  own  names  might  subject  insurers  to  several  suits  on  the  same 
policy,  or  call  upon  them  to  determine  who  has  the  beneficial  interest, 
or  force  them  to  resort  to  a  bill  of  interpleader  to  ascertain  the  equi- 
table rights  of  the  parties. 

In  Campbell  v.  New  England  Insurance  Co.,  98  Mass.  381,  a  suit 
was  brought,  as  in  the  case  at  bar,  l)y  a  wife  who  had  the  entire  equi- 
table interest,  but  the  objection  that  slie  could  not  maintain  the  action 
was  not  taken  till  the  case  was  on  trial  for  the  third  time.  The  court 
held  that  tlie  defendants,  by  their  previous  conduct  of  the  case,  had 
waived  the  right  to  avail  themselves  of  this  objection,  but  intimated 
that  if  valid,  and  seasonably  taken,  it  would  have  rendered  the  other 

*  The  statement  of  facts  is  ulightly  abridged.  —  Ed. 

17 


253  MORGAN   V.    KANSAS   PACIFIC   RAILWAY   CO.  [ciLVr.  II. 

grouuil  of  defence  immaterial.     See  also  Excbange  Bank  v.  Rice,  107 
Mass.  J)  7. 

We  think  the  objection  valid,  in  this  case  seasonably  taken,  and  there 
must  be  Judgment  for  the  defendants.^ 


MORGAN  V.   KANSAS   PACIFIC    RAILWAY  CO. 

Ix  THE  United  States  Circuit  Couut,  Southern  District  of 
New  York,  September  11,  1882. 

[Reported  m  15  Federal  Reporter,  55.2] 

Bill  in  equity  by  the  holder  of  certain  coupons  attached  to  income 
bonds  of  the  Kansas  Pacific  Railway  Company,  for  an  accounting  and 
a  decree  of  payment.  The  plaintiff  sues  "  on  behalf  of  himself  and  all 
other  holders  of  income  bonds  who  may  show  themselves  entitled  to 
relief,  and  who  shall  in  due  time  come  in  and  ask  relief  by  and  con- 
tribute to  the  expenses  of  this  suit."  Lewis,  the  trustee  of  the  bonds, 
was  named  as  defendant  to  the  bill,  but  was  not  served  with  process, 
and  did  not  appear  in  the  cause.     The  bill  averred  a  request  upon 

1  San  Diego  Co.  v.  Cal.  Bank,  52  Fed.  Rep.  59;  Grady  w.  Ibach  (Ala.  1891),  10 
So.  R.  287;  Hartford  Co.  v.  Miller,  41  Conn.  112;  Equitable  Society  y.  Smitb,  25 
111  Ap.  471  ,  Robbins  v  Cheek,  32  Ind.  328;  Brooking  v.  Clark,  2  Litt.  197;  Jenkins  v. 
Morton,  3  Mon.  28;  Lovell  v.  Nelson,  6  J.  J.  Marsh.  247 ;  Stowe  v.  Phinney,  78  Me. 
244  ;  Denton  v.  Denton,  17  Md.  403;  Unity  Assoc,  v.  Dngan,  118  Mass.  219  (xemhlc) ; 
riynu  V.  Mass  Assoc,  152  Mass.  288,  289  ;  Forrest  i-.  O'Donnell,  42  Mich.  55G  ;  Crosby 
V.  Bowery  Bank,  50  N.  Y.  Sup'r  Court,  453  ;  Wynne  v.  Heck,  92  N.  Ca.414  ;  Tuttle  v. 
Catlin,  1  D.  Chip.  366 ;  Tolam  v.  Lewes,  1  Leigh,  436  ;  Garland  v.  Jacobs,  2  Leigh, 
651  ;  Poage  v.  Bell,  8  Leigh,  604  Accord. 

McComas  v.  Covenant  Co.,  56  Mo.  573,  contra.  The  anomalous  doctrine  which  per- 
mits an  undisclosed  principal  to  sue  on  contracts  made  with  the  agent  is  objectionable 
because  the  principal  is,  in  truth,  a  cestui  que  trust  and  not  a  party  to  the  contract. 

The  right  of  tlie  trustee  to  sue  on  a  contract  held  in  trust  is  universally  acknow- 
ledged, Moore  v.  Penn,  5  Ala.  135  ;  AVinters  v.  Rush,  34  Cal.  136  ;  Keyser  );.  P'endall, 
5  Mack.  47;  Treat  v.  Stanton,  14  Conn.  445,  454  {semhie)  ;  Robinson  v.  Jing,  22  Fla. 
321  ;  Ponder  i'.  McGruder,  42  Ga.  242  ;  Weaver  v.  Trustees,  28  Ind.  112;  Dix  v  Akers,, 
30  Ind.  431  ;  Heavenridge  v.  Mondy,  34  Ind.  28 ;  Musselman  v.  Cravens,  47  Ind.  1  ,  Wol- 
cott  V.  Staudley,  62  Ind.  198;  Holmes  v.  Boyd,  90  Ind.  332;  Landwerlen  v.  Wheeler, 
106  Ind  523  ;  Hall  v  Bryan,  50  Md.  194  ;  Burroghs  v.  State  Co.,  97  Mass  359  ;  Gould  v. 
Emerson,  99  Mass.  154,  157  ;  Rindge  v  N.  E  Society,  146  Mass.  286;  Beardslee  v.  Hor- 
ton,  3  Mich.  560 ;  Forrest  v.  O'Donnell,  42  Mich.  526  ;  Cremer  v.  Wimmer,  40  Minn. 
511 ;  Lundberg  v.  N.  W.  Co., 42  Minn  37  ;  Closer.  Hodges, 44  Minn.  274;  Murpheww. 
Sewell,  44  Minn.  530;  Anderson  v.  Keardon,46  Minn.  185  ;  Commissioners  v.  Walker, 
7  Miss.  143;  Young  v.  Hughes,  20  Miss.  93;  Philips  v.  Ward,  51  Mo.  295;  Snider  v. 
Adams  Co.  77  Mo.  523  ;  Beck  v.  Haas,  Mo.  1 892,  20  S.  W.  R.  1 8  ;  Long  Dock  Co.  v.  Benl> 
ley,  37  N.J.  Eq.  15  ;  Stillwell  v  Hurlburt,  18  N.  Y.  374;  Considerant  v.  Brisbane,  22  N. 
Y.  389  ;  Arcade  Co.  v.  Wiatt,  1  Oh.  C.  C.  55  ;  White  v.  Wright,  29  Oh.  St.  427  ;  Holladay 
V.  Davis,  5  Oreg  40 ;  Hexter  v.  Schneider,  14  Greg.  184 ,  Binney  v.  Plumley,  5  Vt.  500, 
A  trustee  is  properly  sole  petitioner  for  a  mandamus.  Tyler  v.  Houghton,  25  Cal 
26.  — Ed. 

2  21  Blatchf.  134  8.  c.  —  Ed. 


SECT.  II.]  MORGAN   V.    KA^■SAS   PACIFIC   EAILWAY   CO.  259 

Lewis  to  bring  this  suit,  but  no  proof  of  the  averment  was  offered 
at  the  hearing. 

G.  H.  Foster,  for  plaintiff. 

J.  F.  Dillon  and  A.  II.  Holmes,  for  defendants. 

Blatchkord,  Justice.  Benjamin  W.  Lewis  is  named  in  the  bill  as 
a  defendant.  Process  of  subpreua  is  prayed  against  him  in  the  bill. 
The  bill  avers  that  *'  during  the  several  years  last  past  the  defendant 
Benjamin  W.  Lewis  has  duly  become  sole  trustee  under  said  income 
mortgage,"  and  "has  been  requested  to  bring  an  action  for  the  ac- 
counting and  injunction  asked  by  the  plaintiff  hei'ein,  but  he  has  neg- 
lected and  failed  to  bring  such  action  or  comply  with  said  request, 
and  he  is,  therefore,  made  a  defendant  in  this  action."  The  answer 
of  the  Kansas  Pacific  Railway  Company  admits  that  "  during  several 
years  last  past  Benjamin  "W.  Lewis  has  been  the  sole  trustee  under  said 
income  mortgage,  but  it  has  no  knowledge  or  information  sutlicient  to 
form  a  belief  as  to  whether  or  not  he  has  been  requested  by  complain- 
ant to  bring  an  action  for  the  accounting  and  injunction  asked  by 
complainant  herein."     This  raises  an  issue  as  to  the  request  to  Lewis. 

Lewis,  being  the  trustee  under  the  mortgage,  is  the  proper  party 
plaintiff  in  a  suit  of  this  character,  and  some  good  reason  must  ap- 
pear of  record  why  he  does  not  sue  as  plaintiff ;  and,  in  such  case,  he 
must  be  made  defendant.  The  bill  recognizes  this  necessity,  and 
hence  makes  the  averments  referred  to.  The  averment  as  to  the  re- 
quest to  Lewis  is  controverted,  but  it  is  not  proved  on  the  part  of  the 
plaintiff.  It  would  be  necessary  to  prove  it,  even  though  Lewis  were 
served  with  process  or  appeared.  It  is  not  alleged  in  the  bill  that  he 
is  bej'ond  the  jurisdiction  of  the  court,  nor  is  that  fact  proved.  The 
bill,  it  is  true,  describes  Lewis  as  "of  the  city  of  St.  Louis,"  and 
as  "  a  citizen  of  the  State  of  Missouri."  But  that  is  not  sullicient. 
And  even  if  it  were  shown  that  Lewis  was  not  and  could  not  be  found 
within  this  district,  to  be  served  with  process,  there  is  nothing  in  sec- 
tion I'M  of  the  Revised  Statutes  which  makes  it  proper  for  the  court 
to  adjudicate  tlie  suit  without  the  i)resence  of  Lewis,  because  the  issue 
as  to  whether  Lewis  refused  to  sue,  as  stated,  is  one  on  which  Lewis 
must  be  heard,  and  under  section  737  he  cannot  be  concluded  or  pre- 
judiced by  a  decree  rendered  in  his  absence.  The  statute  cannot  be 
construed  so  as  to  convert  real  parties  and  necessary  parties  into  no 
l)arties  at  all.  There  is,  in  this  case,  no  suit  to  adjudicate  unless 
Lewis  >)e  plaintiff,  or  unless,  if  he  be  defendant,  he  be  served  or  ap- 
pear. Rule  17  in  equity  is  to  the  same  purport.  It  makes  it  discre- 
tionary with  the  court  to  proceed,  as  does  section  737. 

For  the  foregoing  reason,  and  without  deciding  expressly  or  im- 
pliedly any  other  question  raJHcd  in  the  case,  the  only  dis])osition  that 
can  now  be  made  of  the  suit  is  to  dismiss  the  bill,  with  costs,  but 
without  prejudice  to  any  other  suit  in  any  coui-t.^ 

»  Berry  v.  Mo.  Co.,  22  Fed.  Rep.  6.T1  (compare  Spies  v.  Chicago  Co.,  24  Rlatchf. 
280);    Duucaa   v.   Simmons,   2   St.    &   P.    S.^G ;  Wcstcru   Co.   v.    Nolau,   48   N.   X, 


260  aUlEY   V.   BROWN.  fciIAP.  IL 


CAREY   AND  Others  v.   BROWN. 
In  the  Supreme  Court,  United  States,  October,  1875. 

[Reported  in  92  United  States  Reports,  171] 

Appeal  from  tlie  Circuit  Court  of  the  United  States  for  the  District 
of  Louisiana. 

Jlr.  Conivay  Robinson  for  the  appellants. 

21)'.  Thomas  J.  Durant  for  the  appellee. 

Mr.  Justice  Swayne  delivered  the  opinion  of  the  court.^ 

The  appellants  were  defendants  in  the  court  below.  Tucker  and 
Hoskins,  the  other  defendants,  declined  to  appeal. 

The  case  was  ably  argued  here  by  the  counsel  upon  both  sides. 

It  is  insisted  that  the  bill  is  fatally  defective  for  want  of  parties. 
It  alleges  that  the  complainant  was  the  owner  and  holder  of  the  ten 
promissory  notes  which  lie  at  the  foundation  of  the  case.  In  his  tes- 
timony, he  says  he  held  the  legal  title  to  them,  and  that  they  were 
delivered  to  him  by  their  respective  owners,  with  power  to  settle  and 
dispose  of  them  at  his  discretion,  and  with  no  condition  imposed 
but  the  implied  one  that  he  should  account  for  the  proceeds  to  those 
from  whom  he  received  them. 

The  transfer  created  a  trust.  Those  who  transferred  them  were  the 
cestuis  que  trust,  and  Brown  was  the  trustee. 

The  general  rule  is,  that  in  suits  respecting  trust-property,  brought 
either  by  or  against  the  trustees,  the  cestuis  que  trust  as  well  as  the 
trustees  are  necessary  parties.  Story's  Eq.  PI.  sect.  207.  To  this 
rule  there  are  several  exceptions.  One  of  them  is,  that  where  the 
suit  is  brought  by  the  trustee  to  recover  the  trust  property  or  to  re- 
duce it  to  possession,  and  in  no  wise  affects  his  relation  with  his 
cestuis  que  trust,  it  is  unnecessary  to  make  the  latter  parties.  Horsly 
V.  Fawcett,  11  Beav.  569,  was  a  case  of  tliis  kind.  The  objection 
taken  here  was  taken  there.  The  Master  of  the  Rolls  said,  "If  the 
object  of  the  bill  were  to  recover  the  fund  with  a  view  to  its  admin- 
istration by  the  court,  the  parties  interested  must  be  represented. 
But  it  merely  seeks  to  recover  the  trust-moneys,  so  as  to  enable  the 
trustee  hereafter  to  distribute  them  agreeably  to  the  trusts  declared. 
It  is,  therefore,  unnecessary  to  bring  before  the   court  the  parties 

513;  Re  Straut,  126  N.  Y.  201,  212  [semble) ;  Weetjen  v.  Vibbard,  5  Hun,  265 
Accord. 

A  fortiori  a  cestui  que  trust  cannot  proceed  in  equity  to  enforce  a  legal  demand  of  the 
trustee  against  a  third  person,  unless  the  trustee  is  either  unwilling  or  unable  to  pro- 
ceed himself  at  law.  Rose  i-.  Clarke,  1  Y,  &  C.  C.  C.  534,  548 ;  Re  Uruguay,  1 1  Ch. 
T>.  372 ;  Hall  v.  Thomjison  (May,  1892),  36  Sol.  J.  543  ;  N.  Y.  Co.  v.  Memphis  Co., 
107  U.  S.  205;  Duncan  v.  Simmons,  2  St.  &  P.  356;  Doggett  v.  Hart,  5  Fla.  215; 
Mason  v.  Mason,  33  Ga.  43.5  ;  Harlow  v.  Miske,  64  Miss.  25. 

^  A  part  of  the  opinion,  not  relating  to  the  question  of  parties,  is  omitted.  -    Ed. 


SECT.  II.]  CAKEY   V.   BROWN.  261 

beneficially  interested."     Such  is  now  the  settled  rule  of  equity  plead- 
ing and  practice.^  Decree  ajfirmed. 

1  The  doctrine  of  the  principal  case  has  been  repeatedly  affirmed.  Bills  to  recover 
the  trust  properti/  from  a  stranger.  Jones  v.  Goodchild,  3  P.  VVms.  33 ;  Franco  v. 
Franco,  3  Ves.  Jr.  75  ;  May  v.  Selby,  1  Y.  «&  C.  C.  C.  235 ;  Robinson  v.  Evans,  7  Jur. 
735  ;  Bridget  v.  Hams,  1  Coll.  72  ;  Alexander  v.  Cana,  1  De  G.  &  Sm.  415  ;  Horsley  v. 
Fawcett,  1 1  Beav.  565  ;  Peake  v.  Ledger,  4  De  G.  &  Sm.  137  ;  Hughes  v.  Key,  20  Beav. 
395 ;  Bayuard  v.  Woolley,  20  Beav.  583,  585  ;  Glegg  r.  Rees,  7  Ch.  71  ;  Stace  v.  Gage, 
8  Ch.  D."451 ;  Cooper  v.  Vesey,  20  Ch.  Uiv.  611  ;  Bifield  v.  Taylor,  Bcatty,  91  ;  Hickox 
V.  Elliott,  10  Sawy.  415 ;  Stewart  v.  Duffy,  53  Ind.  564,  574  ;  Aben  v.  Brown,  55  Md.  217  ; 
Ashtou  V.  Atlantic  Bank,  3  All.  217  ;  Bromley  v.  Mitchell  (Mass.,  1892),  30  N.  E.  K.  83  ; 
Cook  V.  Wheeler.  Harriugt.  Ch.  443 ;  Martin  v.  McKeynolds,  6  Mich.  70,  73  ;  Triggs  o. 
Jones,  46  Minn.  277  ;  Ferguson  v.  Applewhite,  18  Miss.  301 ;  Toronto  Co.  v.  Chicago  Co., 
123  N.  Y.  37  ;  Re  Straut,  126  N.  Y.  201  ;  Female  Ass'n  v.  Beekman,  21  Barb.  566  ;  War- 
ren V.  Howard,  99  N.  Ca.  190;  (but  see  Blake  v.  AUnian,  5  Jones,  N.  Ca.  407). 

Foreclosure  bills.  Shaw  v.  R.  R.  Co.,  100  U.  S.  605 ;  Richter  v.  Jerome,  123  U.  S. 
233;  Hall  v.  Sullivan  Co.  (U.  S.  C.  Ct.),  21  Law  Reporter,  138;  Campbell  v.  R.  R.Co., 
1  Woods,  368;  Swift  v.  Stebbins,  4  St.  &  P.  447  ;  Land  Co.  v.  Peck,  112  111.  408,  435  ; 
Riuker  v.  Bissell,  90  Ind.  375;  Shaw  v.  Norfolk  Co.,  5  Gray,  162;  Sill  v.  Ketclmm, 
Harringt.  Ch.  423;  Adams  i-.  Bradley,  12  Mich.  346;  Moulton  r.  Haskell  (Minn., 
1892),  52  N.  W.  R.  960;  Hays  v.  Gallon  Co.,  29  Oh.  St.  330;  West  v.  Morris,  2 
Di.sney,  415.  Redem/ition  hills.  Mills  v  Jennings,  13  Ch.  Div.  611,  6  App.  Cas.  698, 
710;  Boyden  v.  Partridge,  2  Gray,  190.  Bill  for  specif  c  jierfonnunce.  Potts  v. 
Thames  Co.,  15  Jur.  1004.  Bill  to  restrain  a  tort  to  realti/.  Smith  v.  Portland,  30  Fed. 
Rep.  734.  Bill  to  eslaUish  title  under  Burnt  Becords  Act.  Harding  v.  Fuller  (111 , 
1892),  .30  N.  E.  R.  1053.     • 

The  opposite  rule  prevails  in  a  few  jurisdictions. 

Bills  to  recover  the  trust  fund.  Stone  v.  Hale,  17  Ala.  557 ;  Stillwell  v.  IMcNeely, 
1  Green,  Ch.  305.  Foreclosure  bills.  Large  v.  Van  Doreu,  1  McCart.  208  ;  Allen  v. 
Roll,  25  N.  J.  Eq.  163  ;  Jewell  v.  West  Orange,  36  N.  J.  Eq.403  ;  Tyson  v.  Applegate, 
40  N.  J.  Ef|.  305;  unless  the  beneficiaries  are  too  numerous  to  be  conveniently  joined 
as  plaintiffs,  a.**  in  Willink  v.  Morris  Co.,  3  Green,  Ch.  377  ;  Williams  v.  N.  J.  Co.,  25 
N.  J.  Eq.  13.     Bill  to  enjoin  a  prejudicial  sale.     Ex  parte  Mackay,  8  S.  Ca.  48. 

It  follows  from  the  decision  in  the  principal  case  tliat  the  juri.sdiction  of  tlic  United 
States  cv*urt.s  depends  upon  the  citizeiisliip  uf  tlie  trustee,  and  not  upon  tliat  of  the 
cpslu)  que  trust.  Coal  Co.  v.  Blatchford,  11  Wall.  172  {fstvihlt) ;  Knapp  v.  ]{.  M.  Co.,  20 
Wall.  117,  123;  New  Orleans  v.  Gaines,  138  U.  S.  595,  606;  but  see  contra,  Banigan  v. 
Worcester,  30  Fed.  Rep.  392. 

In  Hall  ?'.  Harris,  11  Tex.  300,  it  was  held  tli.it  no  objection  could  bo  m;ido  to  tho 
]oinder  of  a  cestui  ijue  trust  as  plaintiff.  But  in  Cooper  v.  Vcscy,  20  Ch.  Div.  611, 
the  Court  would  not  permit  a  cestui  que  trust,  who  was  improperly  made  a  co-plaintiff, 
to  recover  his  coBt.'<  from  the  unsuccessful  defendant. 

WUKN    CKHTI'I    iiW.    TUrST    NKKI)    NOT    IlK    A    fO-DKFENDANT. 

Whenever  the  trustee  adequately  represents  tho  cestui  que  trust  tho  latter  need  not 
be  made  a  party  defendnnt  to  a  suit  in  cipiity.  Hills  to  deprive  the  truster  of  the  trust-res. 
Andrew  v.  Cocipcr,  45  Ch.  1).  444  ((H.'^ajiproving  of  Clo^'-g  (.-.  I{()wl;ind,3  l'',(|.  .'{68) ;  Kcrri- 
Bon  V.  Stewart,  93  U.  S.  155  ;  Vcttorlein  v.  Barnes,  124  U.  S.  169,  45  Fed.  Hrqt.  741  ;  Bcils 
V  Illinois  Co.,  1.13  TT.  S.  290;  Short  w.  Magrudcr  (IT.  S.  C.  Ct.,  Va.,  1HH5),  2<t  A.  L.  Rev. 
137  ;  Marriott  v.  Givons,  8  Ala.  694  ;  Hunt  v.  Weinor,  39  Ark.  70;  '{"uckor  v.  Zimmer- 
man, 61  (in.  599;  .I<iiiiis()n  v.  Candage,  .'U  Mo.  28;  Stovenson  i'.  Austin,  3  Met.  474; 
Jewett  V.  Tucker,  139  M.'ws.  566  ;  Winsiow  v.  Minn.  Co.,  4  Minn.  313;  Uedin  v.  Bran- 
han,  43  .Minn.  283  ;  Rogers  v.  Rogers,  3  I'aige,  379  ;  Wakeman  v.  Grovor,  4  Paige,  23  ; 
Van  Voorhisr.  Kelly,  31  Hun,  293  ;  (compare  K.  S.  Co.  r.  Roche,  41  llun,  5-19)  ;  Camp- 
bell V.  Watson,  8  ( ih.  498;  Irwin  v.  Keen,  3  Wliart,  347;  Theras.min  v.  Ili<k-ik,37  \t 
4.54.  But  He«  contra,  Ebell  v.  Bursinger,  70  Tex.  120;  Biron  v.  Scott,  80  Wis.  206. 
U ill i  for  specific  performance.     Fry,  Sp.  Perf.  (Ist  ed.),  §  99;  Van  Dover  v.  Robiuson, 


262  WETMOUE  V.   POKTEIJ.  [CHA.P.  II 


A.  B.  WETMORE,  as   Executor,  Appellant  v.  T.  H.  PORTER, 

Respondent. 

In  the  Court  of  Appeals,  New  York,  March,  1883. 

[Reported  in  92  New  York  Reports,  76] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court 
of  the  city  of  New  York,  entered  upon  an  order  made  April  3,  1882, 
which  affirmed  a  judgment  in  favor  of  defendant,  entered  upon  an 
order  sustaining  a  demurrer  to  plaintiff's  complaint  herem. 

E.  Terry  for  appellant. 

Edward  Fitch  for  respondent.-^ 

RuGER,  Ch.  J.  The  defendant  demurred  to  the  complaint  upon  the 
grounds : 

1st.  That  there  was  a  defect  in  the  parties  defendant,  in  that  the 
plaintiff  should  also  have  been  made  a  defendant. 

The  complaint  sets  forth  among  other  things  that  one  Alpheus  Fobes 
died  at  New  York  city  about  the  1st  day  of  July,  1872,  having  executed 
a  last  will  and  testament,  which  was  admitted  to  probate  by  the  surro- 
gate of  the  county  of  New  York,  and  letters  testamentary  were  duly 
issued  thereon  to  Abram  B.  AVetmore  as  sole  executor,  who  thereafter 
took  the  oath  of  office  and  duly  qualified ;  that  nine  $1,000  railroad 
bonds  were  of  the  assets  belonging  to  said  estate  and  were  of  the 
value  of  812,000  ;  that  by  an  order  of  the  surrogate  made  on  or  about 
the  26th  day  of  May,  1874,  the  plaintiff  was  directed  to  keep  tlie  prop- 
erty of  the  estate,  including  said  bonds,  then  remaining  in  his  hands 
invested,  and  to  continue  in  the  discharge  of  his  trust  according  to  the 
terms  of  the  will ;  that  said  bonds  came  into  the  custody  of  the  de- 
fendant by  an  arrangement  between  the  plaintiff  and  defendant  (who 
then  knew  that  the  same  were  trust  funds)  whereby  they  were  to  be 
used  as  collateral  security  at  a  bank  in  New  York  for  the  firm  notes  of 
Porter  &  Wetmore.  That  firm  consisted  of  the  plaintiff  and  defendant, 
who  were  engaged  in  carrying  on  a  general  commission  business  for 
their  joint  ihdividual  benefit.  The  complaint  further  alleges  that  the 
bonds  did  not  belong  to  the  plaintiff  individually,  but  were  owned  by 
the  estate,  and  that  plaintiff  had  long  tried  to  re-obtain  possession  of 

16  N.  J.  Eq.  256.  Redemption  bill.  Sweet  v.  Parker,  22  N.  J.  Eq.  453.  But  see 
contra,  Woodward  i;.  Wood,  19  Ala.  213.  Bill /or  dissolution  and  winding  up  of  a 
partnership.  Taylor  v.  Rockafeller,  18  A.  L.  Eeg.  n.  8.298  (citizenship  of  beneficiary, 
therefore,  did  not  affect  jurisdiction  of  United  States  Court). 

In  a  foreclosure  bill  the  trustee,  it  is  thought,  does  not  adequately  represent  the 
cestui  que  trust.  The  latter  should  have  the  opportunity  of  rai.sing  the  necessary  fund 
to  prevent  a  foreclosure.  Goldsmid  v.  Stonehewer,  9  Hare,  App.  xxxviii. ;  Francis  v. 
Harri.son,  43  Ch.  D.  183;  U.  S.  Co.  v.  Roche,  116  U.  S.  120,  130  {semhie) ;  Mavrich 
V.  Grier,  3  Nev.  52.  But  see  contra,  New  Jersey  Co.  r.  Ames,  1  Beasley,  527 ;  Van 
Vechten  v.  Perry,  2  Johns.  Ch.  197.— Ed. 

1  The  arffuments  of  counsel  are  omitted,  and  a  portion  of  the  opinion  not  relating  to 
the  question  of  parties.  —  Ed. 


SECT.  II.]  WETMOEE   V.   PORTER.  2G3 

them  for  the  purpovse  of  holding  them  to  accomplish  the  objects  of  the 
trust,  but  that  his  efforts  had  been  defeated  by  defendant ;  that  on 
the  11th  day  of  April,  1881,  the  bonds  were  procured  to  be  sold  by  the 
defendant,  and  on  the  12th  day  of  April,  1881,  and  on  several  occa- 
sions previous  thereto,  the  plaintiff  demanded  the  return  of  the  bonds 
or  the  payment  of  the  value  thereof  from  the  defendant,  but  that  the 
defendant,  admitting  that  they  were  in  his  custody  or  control,  refused 
to  return  them  or  pay  their  value  to  the  plaintiff.  The  complaint  closed 
by  demanding  judgment  for  the  sum  of  $15,000  with  costs. 

The  General  Term,  by  a  memorandum  indorsed  upon  the  papers, 
and  which  contains  the  only  information  we  have  of  the  reasons  for 
their  decision,  seem  to  have  placed  it  upon  the  ground  that  the  com- 
plaint showed  upon  its  face  that  there  was  a  defect  of  parties  defend- 
ant. In  other  words,  that  the  plaintiff  should  have  been  made  a  party 
defendant  with  Thomas  E.  Porter  in  any  action  to  recover  the  value 
or  possession  of  the  bonds  in  question.  It,  therefore,  becomes  neces- 
sary to  refer  briefly  to  the  additional  allegations  contained  in  the 
complaint. 

It  substantially  alleges,  in  addition  to  what  has  been  recited,  that  the 
plaintiff,  at  the  request  of  the  defendant,  removed  the  bonds  from  the 
Safe  Deposit  Company,  where  the  securities  of  the  estate  were  deposited 
for  safe  keeping,  and  also  at  defendant's  request  left  them  at  the  Shoe 
and  Leather  Bank  in  New  York  as  security  for  loans  made,  and  to  be 
made  of  said  bank,  by  the  firm  of  Porter  &  Wetmore,  to  carry  on  the 
partnership  business,  and  that  the  bonds  were  ordered  by  defendant  on 
or  about  the  11th  day  of  April,  1881,  to  be  sold  by  the  Shoe  and  Leather 
Bank,  and  the  proceeds  applied  to  pay  a  firm  note  of  the  amount  of 
810,000,  then  held  by  the  bank.  It  was  also  alleged  that  Porter  was 
then  owing  the  plaintiff  a  large  sum  of  money  in  respect  of  the  firm  busi- 
ness, and  had  sudicient  money  belonging  to  the  firm  to  more  than  pay 
the  amount  of  the  note,  at  the  time  of  the  sale  of  the  bonds. 

Upon  this  state  of  facts  the  court  below  has  held  upon  the  strength 
of  the  maxim  "  Ex  turpi  causa  non  oritur  actio  "  that  inasmuch  as 
Abram  B.  "VVetmore  in  his  individual  capacity  was  in  collusion  with 
the  defendant  in  despoiling  this  estate,  that  he  could  not  in  his  repre- 
sentative capacity  reclaim  these  bonds  from  one  who  had  wrongfully 
come  into  tlieir  possession,  and  restore  them  to  the  trust  estate.  The 
court  furtlior  said  that  "  the  remedy  of  the  cestui  que  trust  is  to  have 
another  trustee  appointed  who  shall  l)ring  the  proper  action."  In  this, 
we  think,  it  proceeded  upon  a  mistaken  view  of  the  rights  and  duties  of 
the  parties.  The  legal  title  to  these  bonds,  and  the  right  to  their  cus- 
tody, was  and  remains  in  the  trustee,  at  least  until  they  reach  tlie  pos- 
session of  some  person  who  has  paid  full  value  and  is  ignorant  of  tlieir 
trust  character.  Whoever  receives  property  knowing  that  it  is  the  sub- 
ject of  a  trust,  and  has  been  transferred  in  violation  of  the  duty  or 
power  of  the  trustee,  takes  it  subject  to  the  right,  not  only  of  the 
cestui  que  trust,  but  also  of  the  trustee,  to  reclaim  possession  of  the 


264:  ANONYMOUS.  [chap.  II. 

specific  j)roperty,  or  to  recover  damages  for  its  conversion  in  case  it 
has  boon  convortod.     (Briggs  v.  Davis,  20  N.  Y.  15.) 

In  the  case  of  the  Western  R.  R.  Co.  v.  Nolan  (18  N.  Y.  517),  this 
court  says :  "  The  trustees  are  the  parties  in  whom  the  fund  is  vested, 
and  wliose  duty  it  is  to  maintain  and  defend  it  against  wrongful  attacks 
or  injury  tending  to  impair  its  safety  or  amount.  The  title  to  the  fund 
being  in  them,  neither  the  cestui  que  trusty  nor  the  beneficiaries  can 
maintain  an  action  in  relation  to  it  as  against  third  parties,  except  in 
case  the  trustees  refuse  to  perform  their  duty  in  that  respect,  and  then 
the  trustees  should  be  brought  before  the  court  as  parties  defendant." 

It  is  an  alarming  proposition  to  urge  against  the  legal  title  which  a 
trustee  has  to  trust  funds  that  his  recovery  of  their  possession  ma}'  be 
defeated  by  a  wrong-doer,  upon  the  allegation  that  the  lawful  guardian 
of  the  funds  colluded  with  him  in  obtaining  their  possession.  This 
action  is  sought  to  be  maintained  by  the  plaintiff  solely  in  his  repre- 
sentative capacity  as  executor  or  trustee  under  the  will  of  Alpheus 
Fobes. 

The  twin  maxims  "  Ex  dolo  malo  non  oritur  actio  "  and  "  Ex  tiirpi 
contractu  actio  non  oritur  "  have  no  application  to  the  cause  of  action 
set  up  in  the  complaint.  It  is  not  founded  upon  and  does  not  grow 
out  of  the  illegal  or  unauthorized  dealings  between  the  plaintiff  and 
defendant,  but  such  dealings  are  invoked  by  one  of  the  wrong-doers  to 
defeat  a  party  who  is  asserting  a  legal  right  and  who  in  this  action  ap- 
pears in  a  representative  character  alone.  We  see  no  reason  why  a 
trustee  who  has  been  guilty  even  of  an  intentional  fault  is  not  entitled 
to  his  locus  penitentice  and  an  opportunity  to  repair  the  wrong  which  he 
may  have  committed. 

The  judgment  should  be  reversed  and  judgment  ordered  for  the 
plaintiff  upon  the  demurrer,  unless  the  defendant  within  thirty  days 
pay  plaintiff's  costs  and  answers  in  the  action. 

All  concur.  Judgment  accordingly.^ 


ANONYMOUS. 
In  the  Common  Pleas,  Trinity  Term,  1387. 

[Reported  in  Belleive's  Cases,  11.] 

Account  against  R.  T.,  and  counted  that  he  himself  was  receiver  of 
the  Archdeacon  of  Canterbury,  for  all  England,  and  that  he  had  made 
the  said  R.  his  deputy  under  him  within  the  county  of  N.,  to  render  an 

1  Franco  v.  Franco,  3  Ves.  .Jr.  75 ;  Greenwood  v.  Wakeford,  1  Beav.  576 ;  Price  v, 
Blakemore,  6  Beav.  567  ;  Tlobinson  v.  Evans,  7  Jur.  738 ;  Baynard  v.  WooUey,  20  Beav. 
583  ;  Carson  v.  Sloane,  L.  R.  13  Ir.  139  ;  Lee  v.  Horton,  104  N.  Y.  538,  542;  Zimmer- 
man, 108  N.  Y.  282;  McCoU  v.  Fraser,  40  Hun,  111  (semble);  Abbott  v.  Reeves,  49  Pa. 
494  Accord. —  Ed. 


SECT.  II.]  THE   QUEEN   V.   PAINTER.  265 

account  to  liim,  and  that  R.  had  received  certain  moneys  in  such  a  town 
by  the  hands,  &c.,  and  certain  chattels  in  another  town,  (fee,  and 
counted  in  certain,  and  so  the  defendant  was  his  receiver  in  several 
towns.  And  he  counted  further  how  he  himself  had  accounted  for  the 
same  moneys  to  the  Archdeacon  and  made  him  satisfaction. 

Thirning.  He  shows  the  said  R.  to  be  his  deputy  of  the  moneys  of 
the  Archdeacon,  and  so  not  the  receiver  of  the  plaintiff,  but  cf  the 
Archdeacon  ;  judgment  if  action  lies. 

Belknap,  C.  J.  He  has  counted  that  he  made  satisfaction  to  the 
Archdeacon,  and  that  R.  was  his  deputy  to  render  account  to  him 
and  so  his  receiver,  as  a  sheriff  is  accountable  to  the  king  and  a  deputy 
to  him,  wherefore  answer. 


THE   QUEEN  v.   PAINTER. 

In  the  Exchequer,  1590. 

{Reported  in  4  Leonard,  32,  placitum  89.) 

Sra  "William  Peliiam  was  Surveyor  of  the  Ordnance,  and  delivered 
the  money  of  the  king  to  Painter,  Clerk  of  the  Ordnance.  It  was 
holden  in  this  case,  that  for  the  said  money  the  Queen  might  have 
accompt  against  Painter,  although  he  wanted  a  privity,  which  cannot 
be  80  in  case  of  a  common  person ;  for  if  any  receiver  make  one  his 
deputy,  I  shall  not  have  an  accompt  against  him.^  Popham,  Attorney 
General,  If  one  of  the  Exchequer  lend  unto  another  £500,  of  the 
Queen's  money,  and  takes  a  bond  for  it  in  his  own  name,  yet  the 
Queen  shall  have  an  accompt  against  the  borrower. 

J  Stephens  v.  Badcock,  3  B.  &  Ad.  354;  bobbins  v.  Fennell,  11  Q.  B.  248;  New 
Zealand  Co.  v.  Watson,  7  Q.  B.  Div.  374;  Kaltoubuch  v.  Lewis,  10  App.  Cas.  617; 
Colori  i;.  Holbrook,  2  N.  Y.  120  ;  Naser  v.  First  Bk.,  1 IG  N.  Y.  492  (srmhie) ;  Hoover  v. 
Wise,  99  U.  S.  308  (semhie  cxplaiuing  Wil.son  v.  Smith,  3  How.  770)  Accord.  But  in 
many  cases  in  this  country  a  depositor  ha.s  been  allowed  to  maintain  a  count  for  money 
had  and  received  afjainst  a  sub-apent  bank  fur  the  amount  collected.  In  mo.st  of 
them,  however,  the  question  of  privity  was  eitiier  ignored,  or  thought  to  bo  irrelevant. 
First  Bank  v.  Reno  Bank,  3  Fed.  Kep.  257  ;  Metropol.  Bank  i'.  First  Bank,  19  Fed.  Rep, 
301  ;  Peck  v.  First  Bk  ,  43  F.  R.  357;  Corral  Co.  v.  Fir.-^t  Bank.  73  Ga.  383  ;  Freeman 
V.  Exchange  Bank,  87  Ga.  45  ;  First  Rank  i;.  First  Bank,  76  lud.  561  ;  Manufacturers* 
Bk.  V.  Continental  Bk.,  148  Mass.  553  ;  Producers'  Bk.  v.  Rickets,  1  W.  N.  (Pa.)  48; 
Blaine  v.  Bonrno,  11  R.  I.  119  ;  Sherman  Bank  v.  Wcise,  67  Tex.  331  ;  see  also  Jack- 
son V.  I'artee,  9  Ileisk.  296.  —  Ei>. 


266  ANONYMOUS.  [CHAP.  II. 

SECTION   II.  (contiimed). 
(c)  A  Cestui  que  Trust  op  an  Obligation  cannot  Discharge  the  Obligor. 

PARKER  V.   TENANT. 
In  the  Queen's  Bench,  Michaelmas  Term,  1561. 

[Reported  in  JetiUns,  Century  Cases,  221,  ptacitum  75] 

A.  MAKES  an  obligation  to  B.  for  the  use  of  C.  A  seals  ;  A.,  B.,  and 
C.  being  at  the  time  of  sealing  it  at  one  place  ;  A.  puts  the  obligation 
into  the  hands  of  C.  and  says :  This  will  serve.  This  is  a  good 
delivery  ;  and  tho'  C.  afterwards  marries  A,  yet  the  obligation  remains, 
and  is  neither  extinguished  nor  suspended. 

Adjudged  and  affirmed  m  Error} 


ANONYMOUS. 
In  the  Common  Bench,  1562. 

[Reported  in  Dalison,  38, placttum  6] 

In  debt  upon  an  obligation  Cams,  for  the  defendant,  said  that 
■whereas  he  was  indebted  to  one  A.,  brother  of  the  plaintiff,  in  the  sum 
demanded,  A.  appointed  the  plaintiff  to  be  his  factor,  and  to  receive  an 
obligation  to  his  use,  and  the  defendant  sealed  this  obligation  to  the 
plaintiff  to  the  said  use,  after  which  A.  released  the  defendant  all 
actions,  suits,  and  demands.  It  was  held  by  all  the  judges  that  this 
•was  no  plea,  for  the  obligation  was  made  to  the  plaintiff,  and  A.  had 
nothing  to  do  with  the  action,  so  that  it  is  no  more  than  the  release  of 
a  stranger; 2  and  if  the  plaintiff  himself  had  made  the  release,  this 
would  have  been  a  bar.'  The  use  here  did  not  appear  in  the  obliga- 
tion.    T.  36  H.  VIII.    Broke,  Obligation,  72  &c.,  Mes.  notes,  284. 

1  Cottou  V.  Cotton,  2  Vern.  290  Accord.  —  Ed. 

2  Offly  V.  Warde,  1  Lev.  235  ;  Scholey  v.  Mearns,  7  East,  147  ;  Stevenson  v.  Rogers, 
2  Hill,  S.  Ca.  291  ;  Tuttle  v.  Catlin,  1  D.  Chip.  366  Accord.  But  a  release  by  the  cestui 
que  trust  having  the  entire  beneficial  interest  would  be  effectual  in  equity.  Pratt  v. 
Dow,  56  Me.  81 ;  McBride  v.  Wright,  46  Mich.  265  ;  Gait  v.  Smith,  145  Pa.  167 ; 
Stevenson  v.  Rogers,  2  Hill,  S.  Ca.  291  {semble);  Smith  v.  Brown,  5  Rich.  Eq. 
291.  — Ed. 

3  Groos  V.  Depeham,  1  Cal.  Ch.  XLVIII. ;  Anon.  7  T.  R.  666,  (cited).  Equity  will  set 
aside  a  wrongful  release  if  the  obligor  acted  in  bad  faith.  Land  Co.  v.  Peck,  112  111.  408  , 
Monmouth  Co.  v.  Hutchinson,  21  N.  J.  Eq.  107  ;  Wilson  v.  Stilwell,  14  Oh.  St.  464. 
In  some  jurisdictions,  indeed,  the  common-law  courts  have  treated  such  a  release  as  a 
nullity.  Roden  v.  Murphy,  10  Ala.  804;  O'Reilly  w.  Miller,  52  Mo.  210;  McClaughry 
V.  McClaughry,  121  Pa.  477.  — Ed. 


SECT,  n.]  GIBSON  V.   WINTER.  267 


GIBSON  V.   WINTER   and  Another. 

In  the  King's  Bench,  May  1,  1833. 

[Reported  in  2  Law  Journal,  New  Series,  King's  Bench,  130.] 

Denman,  C.  J.'  —  This  was  an  action  on  a  policy  of  insurance  under 
seal,  in  which  policy  the  plaintiff  was  described  to  be  interested  in  the 
subject  matter,  or  duly  authorized  as  owner  or  agent,  or  otherwise,  and 
it  contained  a  covenant  of  the  defendants  with  him,  which  amounted 
to  an  insurance  on  goods,  the  property  of  Le  Quesne,  of  Jersey,  who 
employed  the  plaintiff  and  his  partner  Poiugdestre,  insurance  brokers 
and  commercial  agents,  in  London,  to  effect  this  poUcy.  A  loss  accrued, 
and  in  July,  182y,  a  partial  adjustment  of  the  loss  to  the  amount  of 
£3,000  took  place  between  the  plaintiff  and  defendants.  The  defend- 
ants gave  credit  to  the  plaintiff  for  £1,52-1  9s.,  due  from  the  plaintiff 
to  them  for  premiums  of  insurance  on  ships,  and  property  of  other 
persons  as  part  payment  of  this  sum,  and  paid  the  balance  of  £1,475 
lis.  to  the  plaintiff.  In  September  the  plaintiff  became  a  bankrupt, 
not  having  paid  to  Le  Quesne  the  amount  received  by  him  and  allowed 
in  account,  and  this  action  was  brought  by  Le  Quesne  in  the  name  of 
the  plaintiff  to  recover  from  the  defendants  the  sum  of  £1,524  9s.,  on 
the  ground  that  the  plaintiff  was  authorized  to  account  for  the  loss  in 
money  only,  and  that  a  paj^ment  in  any  other  way  was  not  binding 
upon  his  principal.  There  were  several  pleas,  and  amongst  the  rest,  a 
plea  of  payment,  upon  which  the  question  arose.  At  the  trial,  before 
Lord  Tenterden,  at  the  Sittings  after  Trinity  term,  the  defendants  had 
a  verdict  on  the  ground  that  Le  Quesne  had  acquiesced  in,  and  adopted 
the  mode  of  payment  pursued  by  the  plaintiff,  and  was  bound  by  it.  If 
it  had  depended  on  the  propriety  of  the  verdict,  we  should  have  tliought 
it  right  to  submit  the  case  to  the  consideration  of  another  jur}',  for  we 
are  by  no  means  satisfied  that  the  evidence  proved  acquiescence  and 
adoption  by  Le  Quesne,  as  he  was  never  correctly  informed  of  the  real 
state  of  the  facts.  It  was  insisted  by  the  counsel  for  the  defendants, 
that  tlie  evidence  proved  a  general  agency  in  Poiugdestre  and  Gibson, 
and,  therefore,  their  acts  bound  Le  (Quesne  ;  but  we  are  of  opinion  the 
verdict  cannot  be  supported  on  that  ground,  as  their  general  agency 
was  not  proved,  and,  indeed,  was  negatived  upon  the  trial.  The  last 
objection  is,  that  as  the  covenant  was  with  Gibson,  and  he  alone  could 
sue  upon  it,  payment  to  him  in  any  mode  by  whicli  he  was  luiund, 
would  be  a  good  payment  against  Lc  (Quesne,  and  as  the  settU^nient 
witli  the  plaintiff  bound  him,  it  equally  ])ound  Le  (Quesne  suing  in  his 
name  ;  and,  upon  full  consideration,  we  are  of  opinion  that  this  objec- 
tion is  valid.  The  plaintiff,  though  he  sues  as  trustee  of  another,  must, 
in  a  court  of  law,  ])e  treated  in  all  respects  as  the  party  upon  the  re- 

*  Only  the  opinion  of  the  court  is  here  given.  —  Ed. 


26S  GIBSON   V.  "WINTER.  [CHAP.  IL 

conl.  If  tliorc  is  a  defence  against  him,  there  is  a  defence  against 
the  cestui  que  trust  ayUo  uses  his  name,  and  the  plaiutiff  cannot  be  per- 
mitted to  say,  for  the  benefit  of  another,  that  his  own  act  is  not  bhul- 
in<T.  The  following  are  the  authorities  which  appear  to  us  fully  to 
warrant  that  proposition.  In  Bauerman  v.  Radenius,^  in  which  the 
question  was,  whether  an  admission  by  the  plaintiff,  who  was  clearly  a 
trustee  for  another,  should  be  received  in  evidence.  Lord  Kenyou 
says,  "If  the  question  which  has  been  made  in  this  case  had  arisen 
before  Sir  INIatthew  Ilale,  or  Lords  Holt  or  Ilardwicke,  I  believe  it 
never  would  have  occurred  to  them,  sitting  in  a  court  of  law,  that  they 
could  have  gone  out  of  the  record,  and  considered  third  persons  as 
parties  in  the  cause.  Here  it  has  been  contended,  that  Bauerman  & 
Co.  are  to  be  laid  out  of  the  case  entirely,  and  we  are  desired  to  sub- 
stitute Van  Dyck  &  Co.  as  plaintiffs  in  their  room  ;  but  if  they  may 
be  taken  to  be  off  the  record,  then  they  may  be  witnesses,  and  yet 
it  is  not  pretended,  that  they  could  have  been  examined  :  the  argument, 
therefore,  that  asserts  that  they  may  be  taken  from  off  the  record,  not 
holding  good  to  all  purposes,  fails  entirely.  I  cannot  conceive,  on 
what  ground  it  can  be  said,  that  Bauerman  &  Co.  may  be  considered 
not  as  parties  in  the  cause,  for  the  purpose  of  rejecting  their  admis- 
sions, and  yet,  as  the  parties  in  the  cause,  for  the  purpose  of  prevent- 
ing their  being  examined  as  witnesses.  I  take  it  to  be  an  incontro- 
vertible rule,  that  the  admission  made  by  a  plaiutiff  upon  the  record 
is  admissible  evidence."  ^  So,  a  release  by  the  plaintiff,  upon  the  re- 
cord, suing  for  the  benefit  of  another,  was  decided,  in  a  case  before 
Lord  Mansfield,  to  be  a  good  answer  at  law,  cited  in  Bauerman  v. 
"Radenius  ;  and  Lawrence,  J.  expresses  the  same  opinion  in  the  case 
last  mentioned.  The  courts  of  law  have  been  in  the  habit  of  exer- 
cising an  equitable  jurisdiction  upon  motion,  and  setting  such  releases 
aside,  or  preventing  the  defendant  from  pleading  them,  as  in  Legh 
V.  Legh,^  Payne  v.  Rogers,*  Jones  v.  Herbert,"  and  by  Abbott,  C.  J., 
in  Skaife  and  another  v.  Jackson,*  and  many  other  cases,^  which  prac- 

1  7  Term  Rep.  663. 

2  Craib  v.  D'Aeth,  7  T.  R.  670  n.  (a)  ;  Knorr  v.  Eayirmnd,  7.3  Ga.  749 ;  Tenney  v. 
Evans,  14  N.  H.  343  Accord.  But  in  Owings  v.  Low,  5  Gill  &  J.  134,  135,  an  obligor 
was  not  allowed  to  use  an  admission  of  an  assignor  made  to  defraud  the  assignee. 
See,  also,  Bragg  v.  Geddes,  93  111.  39,  58. 

The  admission  of  a  cestui  que  trust  is  competent  in  a  proceeding  to  which  the  trus- 
tee is  alone  a  party.  Hanson  v.  Parker,  1  Wils.  257  ;  King  v.  Hard  wick,  1 1  East,  578, 
584;  Bell  v.  Ansley,  16  East,  141,  143;  Smith  v.  Lyon,  3  Camp.  465;  Wel.stead  v. 
Levy,  1  M.  &  Rob.  138 ;  Doe  v.  Wainwright,  3  Nev.  &  P.  598 ;  May  v.  Taylor,  6  M.  & 
G.  261.    But  see  Pope  v.  Devereux,  5  Gray,  409,  413.  —Ed. 

8  1  Bos.  &  Pul.  447. 

*  Dougl.  391. 

6  7  Taunt.  421. 

8  3  B.  &  C.  421  ;  8.  c.  3  Law  Jonrn.  K.  B.  43. 

'  Hickey  v.  Burt,  7  Taunt.  48 ;  Mountstephen  v.  Brooke,  1  Chitty,  390;  Innell  n 
Newman,  4  B.  &  Al.  41 9  ;  Manning  v.  Cox,  7  Moore,  61 7  ;  Barker  v.  Richardson,  1  Y.  & 
J.  362 ;  Green  v.  Williams,  Manning,  N.  P.  Index  (2  ed.)  127  ;  De  Pothonier  v.  Mattoa, 


SECT.  II.]  GIBSON   V.   WINTEE.  269 

tice  shows  very  clearly  the  opinion  of  the  Court,  that  but  for  their 
equitable  interference,  the  real  plaintiff  could  not  be  heard.  Again, 
in  Alner  v.  George,^  where  trustees  for  the  benefit  of  creditors  sued  in 
the  name  of  the  insolvent,  Lord  EUenborough  held,  that  a  receipt  in 
full,  for  the  amount  by  the  plaintiffs,  was  an  answer  to  the  action ; 
and  his  Lordship  said,  ''  If  a  motion  had  been  made  in  term  time, 
to  prevent  the  defendant  from  availing  himself  of  this  defence,  perhaps 
we  might  have  interfered.  Sitting  here,  I  can  only  luolc  to  the  strict 
legal  rights  of  the  parties  upon  the  record  ;  and  there  can  be  no  doubt, 
that  a  receipt  in  full,  where  the  person  who  gave  it  was  under  no  mis- 
apprehension, and  can  complain  of  no  fraud  or  imposition,  is  binding 
upon  him.  The  plaintiff  might  have  released  his  action,  and  it  is  im- 
possible to  admit  evidence  of  his  attempting  to  defraud  others."  la 
Jones  V.  Yates,'^  Lord  Tenterden,  C.  J.,  said,  "  We  are  not  aware  of 
any  instance,  in  which  a  person  has  been  allowed,  as  plaintiff,  in  a 
court  of  law,  to  rescind  his  own  act,  on  the  ground  that  such  act  was 
a  fraud  on  some  other  person  ;  for  a  party  seeking  to  do  tliat,  has  the 
benefit  of  his  own  fraud ;  "  and  therefore,  it  was  held,  where  one  of 
two  partners  disposed  of  some  of  their  effects  in  trade,  in  fraud  of  the 
other,  both  could  not  sue,  in  a  court  of  law,  to  recover  for  them  in  an 
action  of  trover.  Upon  principle,  and  on  these  authorities,  we  are  of 
opinion,  if  there  be  a  good  defence  against  the  plaiutift",  there  is  a  good 
defence  against  Le  Quesne  suing  in  his  name.  The  only  remaining 
question  is,  whether  there  is  a  good  defence  against  the  plaintiff. 
Now,  if  the  plaintiff  was  suing,  himself,  it  is  clear  the  plea  of  pay- 
ment would  liave  been  proved,  for  credit  given  to  the  plaintiff,  for 
the  amount  of  premiums,  was  equivalent  to  payment  by  tlie  defend- 
ants to  the  plaintiff  of  that  amount.  We  therefore  think,  the  defend- 
ants were  no  longer  liable ;  but  as  this  point,  upon  which  we  decide 
the  case,  was  intended  to  be  reserved  by  Lord  Tenterden,  in  which 
case  a  nonsuit  would  have  been  entered,  we  thiuk,  a  similar  rule 
should  be  now  pronounced. 

Rule  absolute  for  entering  a  nonsuit.' 

E.  B.  &  E,  4f.l ;  Maivleville  v.  Welch,  1  Wheat.  230,  5  Wheat.  277  ;  Brown  »•.  Ilart- 
fonl  Co.,  I'.rminor,  Oti.J ;  Koden  v.  Murpliy,  10  A  hi.  804;  Woolfo  /•.  Hate,  'J  B.  Mon. 
208  ;  Hart  v.  Western  Co.,  13  Met.  99  ;  (ireene  v.  Beatty,  Coxo,  142 ;  Tiinau  v.  Lelaud, 
6  Hill,  237  ;  Mff 'iillum  v.  Cox,  1  Dall.  13;».  —  Kd. 

1  1  Campb.  392. 

2  9  B.  &  C.  .W2;  9.  c.  7  Law  Journ.  K.  B.  217. 

8  In  Mayer  u.  Mordecai,  1  S.  C.  n.  fl.  383,  and  Creiphton  v.  Pringlo,  3  R.  C.  n.  s. 
78,  a  payment  to  the  tni.stec  of  a  hnnd  in  confeilerate  money  was  held  to  discharge  the 
obli^^or,  although  tlie  tru.ttec  wa.s  Ruilty  of  a  breach  of  tru.st  in  acc('|)tinR  the  payment. 

Ai-ri-KATioN  OK  rruciiAHi;  MoNKY.  —  Tiie  payment  of  the  piircha.so  money  to  a 
trnatee  authorized  to  sell,  ha«  always  been  treated  an  a  valid  di.'<char>i;e  of  the  ])urcbasor 
at  law.  But  there  were  formerly  many  iimtances  wlicre  tlie  j)iircli;i.si'r,  wIki  bad  pai<l  the 
trustee,  continued  liable  in  equity  if  the  money  paid  wiw  nut  duly  apjjlied  for  the  benefit 
of  the  cestui  que  trust.  This  highly  artificial  dwtrino  would  seem  to  bo  indcfensiblQ 
on  any  principle.  Its  inconvenience  a.s  a  working  rule  became  ho  intolerable  that  the 
►hole  doctrine  has  been  swept  away  by  statute  iu  Eujjiand,  New  York  and  other 


270  GIBSON   V.   WINTER.  [CHAP.  II. 

jurisilictions.  In  some  of  our  states  the  iloctrino  never  obtained  a  footliold  in  the 
ecjuitv  courts.  The  ohi  learning  on  this  point  may  be  found  in  Lewin,  Trusts  (9th  ed) 
502  ft  .«•(/ ;  2  I'orry,  'I'rnsts  (4th  ed.)  §  TltO  ct  seq. 

Skt-i>ff.  —  111  an  action  brought  by  tiio  phiiutiff  as  trustee,  the  defendant  may,  at 
common  law,  plead  a  set-off  of  a  debt  due  to  him  from  the  plaintiff  as  au  individual. 
Forster  c.  Wilson,  12  M.  &  W.  191,  203  per  I'arke,  B.  But  equity  will  enjoin  the  de- 
fendant from  relying  on  such  a  i)lca  if  the  plaintiff's  claim  was  known  at  the  time  of 
its  creation  to  be  a  trust  claim.  Tannell  v.  Hurley,  2  Coll  241  ;  Bodenham  v.  Hoskins, 
2  D.  M.  &  G.  903  ;  Merser  v.  Graves,  L.  R.  7  Q.  B.  499,  504 ;  Nat.  Bank  v.  Ins.  Co., 
104  U.  S  54  ;  Hooper  v.  Armstrong,  69  Ala.  343  ,  Ilobbs  v.  Duff,  23  Cal.  596  ;  Flour- 
uoy  i>.  Jeffersonville,  17  Ind.  169;  Bundy  t;  Monticello,  84  Ind.  119;  Davis  v.  Com- 
missioner, Morris,  Iowa,  161 ;  Carlisle  v.  Long,  1  A.  K  Marsh.  486;  Wolfe  v.  Bate,  9 
B.  Men.  208,  211;  Bourne  v.  Wooldridge,  10  B.  Mon.  492  ;  Page  v.  Stevens,  23  Mich. 
357  ,  Lee  v.  Newell,  107  Pa.  283.  See  Falkland  u.  St.  Nicholas  Bank,  84  N.  Y.  150. 
The  set-off  will  be  allowed,  if  the  trust  relation  was  unknown  to  the  defendant.  School 
District  v.  First  Bank,  102  Mass.  174, 

The  defendant  in  au  action  by  the  trustee  cannot  at  law  plead  by  way  of  set-off  a 
debt  due  to  him  from  the  cestui  que  trust.  Lane  v.  Chandler,  7  East,  153  (cited) ; 
Tucker  v.  Tucker,  4  B.  &  Ad.  745,  751,  752  (semble) ;  Isberg  v.  Bowden,  8  Ex.  852 
(overruling  Bottomley  v.  Brooke  and  Rudge  v.  Birch,  cited  in  1  T.  R.  621,  622) , 
Westoby  v  Day,  2  E.  &  B.  605,  624 ;  Watkins  v.  Clark,  12  C.  B.  n.  s.  277 ;  Porter  v. 
Morris,  2  Barring.  509 ;  Wheeler  v  Raymond,  5  Cow  231  (but  see  s.  c.  9  Cow.  295, 
and  Caines  v.  Brisban,  13  Johns.  9)  ;  I'resident  v  Ogle,  Wright  (Oliio),  281 ;  Adams 
V.  Bliss,  16  Vt.  39.  But  in  most  jurisdictions  such  set-off  is  allowed  in  equity,  and  also 
as  an  ecjuitable  bar  in  a  common-law  action.  Cavendish  r.  Geaves,  24Beav.  163  ;  Agra 
Bank  11.  Leighton,  L.  R.  2  Ex.  56;  Thornton  v.  Maynard,  L.  R  10  C.  P.  695  ,  (but  see 
Middleton  i'.  Pollock,  20  Eq  29,  and  Walker  v.  Brooks,  125  Mass.  241  ;)  McDonald  v. 
Bode,  20  Sol.  J.  241  ;  (approved  in  Nayler  v.  Ferrer,  26  W.  R.  809,  810;)  Corser  v. 
Craig,  1  Wash.  C.  C.  424 ,  Campbell  r.  Hamilton,  4  Wash.  C.  C.  92,  94 ;  Winchester 
V  Hackley,  2  Cranch,  342 ;  Forkner  y.  Dinwiddle,  3  Ind.  34  ;  Henry  y.  Scott,  3  Ind.  412  ; 
Jones  f.  Hawkins,  17  Ind.  550;  Waddle  «;.  Harbeck,  33  Ind.  231  ;  Swindell  v.  Richey, 
41  Ind.  281;  Heavenridge  v.  Mondy,  49  Ind.  434;  W^ulschner  v.  Wells,  87  Ind.  71  ; 
(but  see  Stevens  v.  Songen,  14  Ind.  342,)  Ward  v.  Martin,  3  Mon.  18;  Sheldon  v. 
Kendall,  7  Cush.  217  ;  Chandler  v.  Drew,  6  N.  H.  469;  Felsenthal  v.  Hawks  (Minn. 
1892),  52  N.  W.  R.  528;  Driggs  r.  Rockwell,  11  Wend.  504;  Wolf  v.  Beales,  6  S.  & 
R.  242  ;  Graphic  Co.  v.  Marcy,  12  Phila.  218  ;  (but  see,  contra,  First  Bank  v.  Mason, 
95  Pa.  113  ;  Citizens'  Bank  v.  Alexander,  120  Pa.  113). 

The  defendant  is  not  entitled  at  law  to  set  off  a  debt  due  from  the  plaintiff  to  a 
third  person  as  trustee  for  the  defendant.  Wake  v.  Tinkler,  16  tlast,  36;  Reeves  v. 
Hatkinson,  2  Penningt.  751.  But  such  set-off  is  allowed  in  e<[uity,  if  eijuity  has  juris- 
diction on  other  grounds,  Clark  v.  Cort,  Cr.  &  Ph.  154 ;  and  is  now  allowed  as  an  equit- 
able plea.  Cochrane  v.  Green,  9  C.  B.  "n.  s.  448  ;  Elkin  v.  Baker,  11  C.  B.  n.  s.  526; 
£x  parte  Morier,  12  Ch.  D.  491  ;  (but  see  Middleton  v.  Pollock,  20  Eq.  29 ; )  Hoffman 
V.  Zollinger,  39  Ind.  461  ;  Commw.  v.  Phoenix  Bank,  11  Met.  129,  136  ;  Ashhy  y.  Carr, 
40  Miss.  64;  Hunt  v.  Shackleford,  55  Miss.  94;  Pollard  v.  Thomas,  61  Miss.  150; 
Wright  V.  Cobleigh,  23  N.  H.  32;  Tuttle  v.  Bebee,  8  Johns.  152;  Compty  v.  Aiken,  2 
Bay,  481. 

A  defendant  would  be  entitled  at  law  to  setoff  the  plaintiff's  debt  to  him  as  trastee. 
Forster  v.  Wilson,  12  M.  &  W.  191,  203.  But  the  rule  isotherwi.se  in  bankruptcy.  Fair 
V.  M'lver,  16  East,  130;  Wilson  v.  Forster,  12  M.  &  W.  191 ;  Re  Lane,  305 ;  and  pre- 
sumably in  most  jurisdictions  the  application  of  equitable  principles  would  defeat  the 
legal  set-off  to-day.  —  Ed. 


SECT.  T:.1  WYCH  v.   east   INDIA   COMPANY.  271 


SECTION  n.  (conti7iued). 

{d)   When  Cestui  que  Trust's  Interest  in  the  Trust-res  is  forfeited  by 

THE  Trustee's  Laches. 

WYCH   V.   EAST  INDIA   COMPANY. 

In  Chancery,  before  Lord  Talbot,  Trinity  Term,  1734. 

[Reported  m  3  Peere  Williams,  309.] 

The  East  India  Company  were  bound  by  contract  to  make  an  allow- 
ance of  two  rupees  per  cent,  to  the  plaintiff's  intestate,  for  which  the 
plaintiff,  the  administrator  de  bonis  non  of  his  father,  brought  a  bill. 
The  intestate,  with  whom  the  company  made  the  contract,  was  then 
beyond  sea,  and  there  died,  leaving  an  infant  son  of  tender  years. 
Upon  the  death  of  the  intestate,  administration  was  granted  to  A. 
until  the  said  son  should  come  to  twenty-one,  ad  usuvi  et  commodum 

of  the  infant,  who  at  that  time  was  about years  of  age.     The 

administrator  in  trust  for  the  infant  never  commenced  any  suit  on  this 
contract ;  but  the  son  within  six  years  after  his  attaining  twenty-one, 
brought  this  bill  against  the  company,  who  pleaded  the  statute  of 
limitations,  viz.  that  the  cause  of  action  did  accrue  above  six  3'ears 
before  the  suit  commenced, 

.  Whereupon  it  was  argued,  that  as  the  time  did  not  run  against  the 
father,  with  whom  the  contract  was  made,  because  he  was  beyond  sea, 
and  died  there  ;  so  after  the  death  of  the  father  the  son  was  an  infant, 
and  ought  not  to  be  barred  or  prejudiced  by  the  neglect  or  default  of 
his  trustee,  the  administrator  during  his  minority. 

Lord  Chancellor.  The  administrator  duriug  the  infancy  of  the 
plaintiff  had  a  right  to  sue  ;  and  though  the  cestui  que  trust  was  an  in- 
fant, yet  he  must  be  bound  by  the  trustee's  not  suing  in  time ;  for  I 
cannot  take  away  the  benefit  of  the  statute  of  limitations  from  the 
company,  who  are  in  no  default,  and  are  entitled  to  take  advantage 
thereof  as  well  as  private  persons  ;  since  their  witnesses  may  die,  or 
their  vouchers  be  lost.  And  as  to  the  trust,  that  is  only  between  the 
administrator  and  the  infant,  and  does  not  affect  the  company.  So 
whore  there  is  an  executor  in  trust  for  another,  and  tlie  executor 
neglects  to  bring  his  action  within  the  time  prescribed  by  tlie  statute, 
the  cestui  f/ne  trust,  or  residuary  legatee,  will  be  barred ;  therefore 
allow  the  plea.* 

*  If  the  Statute  of  Limitations  has  run  against  a  tnistee,  upon  any  claim,  real  or 
personal,  legiil  or  et|iiitat)lo,  the  cestui  que  trust,  whether  sm  juris  or  not,  is  also  liarrcd. 
Anon.,  2  And.  143,  Lcwollin  v.  Mackworth,.3  K(i,  Ca.  Ali.  .57;>,  I5arn.  445,8.  c. ;  Sniilt  u. 
Acton,  2G  Hr'av.  210,  21-3  (.irmhle);  Spickorncll  v.  Holliam,  Kay,  009,  C".'j ;  Stone  i'.  Stone, 
5  Ch.  74  ;  Holling  r.  Holxlay,  31  W.  K.  9  ;  Ilovcmlcn  r.  Anncslcy,  2  Sch.  &  Lff.  fi29 ; 
Pentlanfl  v.  Stokes,  2  P.a.  &  Ho.  68,  74,  7T) ;  Mecko  v.  Olplmrts,  100  U.  S.  504  ;  Trimhlo 
V.  Woodhead,  102  U.  S.  047  ;"  llaycs  v.  Mclntire,45  Fed.  Kcp.  ."jag  ;  CoUiurn  v.  Brough- 


272  LLOYD'S   BANKING   CO.   V.   JONES.  [CHAP.  IL 


LLOYD'S   BANKING  COMPANY  v.   JONES. 
In  the  Cuancery  Division,  Maucu  2,  3,  1885. 

[Reported  in  29  Chancery  Division,  221  ] 

On  the  17th  of  November,  1875,  Thomas  Adams,  being  then  en- 
titled to  some  leasehold,  houses  in  Birmingham,  deposited  the  leases 
and  other  title  deeds  with  Lloyd's  Banking  Company,  together  with  a 
memorandum  signed  by  him,  which  stated  that  the  deeds  were  de- 
posited witli  the  bank,  and  were  to  be  retained  by  them,  by  way  of 
a  continuing  security  to  them  for  any  overdraft  of  his  wife's  current 
account.  And  Adams  thereby  undertook  at  his  own  expense,  when 
required  by  the  bank,  to  execute  to  them,  or  as  they  should  direct,  a 
mortgage  of  all  his  estate  and  interest  in  the  premises  comprised  in 
the  deeds,  whicli  mortgage  should  contain  a  power  of  sale  and  all  usual 
clauses.  On  the  10th  of  November,  1876,  Adams  died.  By  his  will, 
dated  the  15th  of  September,  1876,  he  gave  all  his  estate  and  effects 
whatsoever  to  his  wife  absolutely,  and  appointed  her  executrix.  At 
the  time  of  his  death  the  deeds  thus  deposited  remained  with  the  bank, 
and  after  his  death  Mrs.  Adams  continued  to  receive  credit  from  the 
bank  on  the  security  of  the  deposit.  On  the  29th  of  May,  1877,  she 
married  Henry  Chance.  On  the  25th  of  May,  1877,  in  contemplation 
of  the  marriage,  Mrs,  Adams,  with  the  assent  of  Chance,  assigned  the 

ton,  9  Ala.  351,  363  ;  Nimmo  v.  Stewart,  21  Ala.  682  ;  Bryan  v.  Weems,  29  Ala.  428  ; 
Fleming  c.  Gilmer,  35  Ala.  62  (semhlc) ;  Moltou  v.  Henderson,  62  Ala.  426 ;  Smith  v. 
Gillam,  80  Ala.  296 ;  Chase  v.  Cartwright,  53  Ark.  358  ;  Marsh  v.  Duoley,  52  Cal.  232  ; 
Wilnierding  v.  Russ,  33  Conn.  67  ;  Worthy  v.  Johnson,  10  Ga.  358 ;  Mason  v.  Mason,  33 
Ga.  4;55  ;  Wiugficld  v.  Virgin,  51  Ga.  139 ;  Knorr  v.  Raymond,  73  Ga.  749  ;  Crawley  v. 
Richardson,  78  Ga.  213;  Salter  v.  Salter,  80  Ga.  178  ;  Lane  v.  Nickerson,  99  111.  284 ; 
Diffenderfer  v.  Scott,  (Ind..  1892),  32  N.  E.  R.  87  ;  Thomas  v.  White,  3  Litt.  177,  182 ; 
Couch  V.  Couch,  9  B.  Mon.  160  ;  Darnall  v.  Adams,  13  B.  Mon.  273  ;  Edwards  v.  Wool- 
folk,  17  B.  Mon.  381  ;  Coleman  v.  Walker,  3  Met.  (Ky.)  65;  Barclay  v.  Goodloe,  83 
Ky.*493  ;  Smith  v.  Smith,  (Ky.  1892),  19  S.  W.  R.  595  ;  Crook  v.  Glenn,  30  Md,  55  ; 
Weaver  v.  Leiman,  52  Md.  708  ;  Bennett  v.  Williamson,  8  Ired.  121  ;  Welborn  v.  Fin- 
ley,  7  Jones  (N.  Ca.),  228;  Blake  v.  Allman,  5  Jones,  Eq.  407;  Ilerndon  v.  Pratt,  6 
Jones,  Eq  327  ;  Clayton  v.  Cayle,  97  N.  Ca.  300  ;  Kingy.  Rhew,  108  N.  Ca.  696  ;  Smilie 
V.  Biffle,  2  Barr,  52  ;  Moore  i'.  Barry,  1  Bail.  504  ;  Pledger  v.  Easterling,  4  Rich  101  ; 
Long  V.  Ca.son,  4  Rich.  Eq.  GO,  64  (semhle) ;  Tutt  v.  R.  R.  Co.,  28  S.  Ca.388j  Williams 
V.  Otey,  8  Humph.  563 ;  Wooldridge  v.  Planters'  Bank,  1  Sneed,  297  ;  Goss  v.  Single- 
ton, 2  Head,  67  ;  Watkins  v.  Specht,  7  Coldw.  585  ;  Woodward  v.  Boro,  16  Lea,  678 ; 
Collins  V.  McCarty,  68  Tex.  150;  Sheppard  v.  Turpin,  3  Grat.  373. 

But  see,  contra,  Allen  v.  Sayer,  2  Vern.  368;  Lechmere  v.  Carlisle,  3  P.  Wms.  215; 
Bacon  i;.  Gray,  23  MLss.  140. 

On  the  other  hand,  if  the  trustee  is  an  infant,  the  Statute  of  Limitations  will  not 
run  against  the  cestui  que  trust  even  though  the  latter  be  su>  juris.  Clayton  v.  Rose, 
87  N.  Ca.  106  ;  Waring  v.  Cheraw,  16  S.  Ca.  416.  See  also  Grimsby  v.  Hudnell,  76  Ga. 
378.  So,  if  a  devisee  in  trust  disclaims,  so  that  under  a  statute  the  title  vests  in  the 
Supreme  Court,  the  Statute  of  Limitations  will  not  begin  to  run  until  a  new  trustee 
is  appointed.     Dunning  v.  Ocean  Bank,  6  Lans.  296.  —  Ed. 


SECT.  II.]  Lloyd's  banking  co.  v.  joxes.  273 

leasehold  property  comprised  in  the  deposited  deeds  to  John  Jones,  in 
trust  for  herself  until  the  intended  marriage,  and,  after  the  solemniza- 
tion thereof,  upon  trust  to  permit  her  to  use  and  occupy  the  premises, 
or  otherwise  enjoy  the  rents  thereof  for  her  separate  use,  until  the  sale 
thereof  as  thereinafter  provided,  and  upon  trust  that  the  trustee  should, 
at  the  sole  request  in  writing  of  Mrs.  Adams,  notwithstanding  coverture, 
during  her  life,  and  after  her  death  at  the  discretion  of  the  trustee,  sell 
the  leasehold  premises,  and  should  stand  possessed  of  the  residue  of 
the  proceeds  of  sale  (after  payment  of  costs  and  expenses),  and  also 
of  the  rents  and  profits  of  the  premises,  in  case  Mrs.  Adams  should 
not  continue  to  occupy  the  same,  in  trust  during  her  life  to  pay  the 
same  to  her  for  her  separate  use.  And  it  was  further  declared  that,  in 
the  event  of  the  death  of  Mrs.  Adams  before  the  premises  should  be 
sold,  the  trustee  should  stand  possessed  of  the  same  and  the  rents 
thereof,  in  trust  for  T.  J.  Adams  (the  son  of  Mrs.  Adams  by  her  late 
husband)  absolutely.  No  inquiry  was  made  by  the  trustee  about  the 
title  deeds  of  the  property,  and  no  notice  of  the  settlement  was  given 
to  the  bank.  On  the-  6th  of  June,  1877,  Mrs.  Chance  went  with  her 
husband  to  the  bank,  and  informed  the  manager  of  her  marriage  (this 
being  the  first  notice  the  bank  had  of  the  marriage),  and,  at  the  request 
of  her  and  her  iuisband,  a  balance  of  £133  16s.  or?.,  which  then  stood 
to  the  credit  of  her  current  account,  was  transferred  by  the  bank  to  the 
credit  of  a  new  account  opened  in  the  name  of  Henry  Chance.  No  no- 
tice of  the  settlement  was  given  to  the  bank,  but  the  deeds  were  allowed 
to  remain  with  them  as  a  security  for  any  overdraft  of  Chance's  ac- 
count. In  November,  1877,  the  bank  wrote  to  Chance,  whose  account 
was  then  overdrawn,  requesting  him  to  let  them  have  a  cop}'  of  the 
will  of  jNIrs.  Chance's  former  husband,  that  they  might  consider  what 
was  necessary  to  be  done  under  the  altered  circumstances.  The  pro- 
bate of  the  will  was  sent  to  them,  and  they,  after  consulting  their 
solicitors,  requested  ]Mr.  and  INIrs.  Chance  to  sign  a  new  memorandum 
of  deposit  of  the  deeds.  This  was  done  on  the  26th  of  January,  1878, 
the  new  memorandum  stating  that  the  deeds  were  deposited  with  the 
bank  as  a  continuing  security  to  them  for  moneys  advanced  by  them  to 
Henry  Chance,  whether  on  current  account  or  otherwise.  In  April, 
1878,  Mrs.  Chance  died.  The  deed.s  were  still  with  the  bank,  and  at 
that  time  Chance's  account  was  not  overdrawn.  He  afterwards  re- 
ceived credit  from  the  bank  on  the  security  of  the  deposit.  After  the 
death  of  his  wife,  Henry  Chance  continued  to  reside  in  one  of  the  lease- 
hold liousfs.  and  received  the  rents  of  the  others.  The  son  of  his  wife 
by  her  former  marriage,  who  was  an  infant,  lived  with  him  and  was 
maintained  by  him.  In  the  year  1883  Jones  was  informed  of  some 
remark  which  Chance  liad  made  in  the  market  place  about  the  prop- 
erty, and  this  induced  him  to  make  inquiry  about  the  deeds  of  a  Mr. 
King,  a  solicitor,  who  harl  prepared  the  settlement,  and  in  whosa 
custody  Jones  up  to  this  time  believed  that  the  title  deeds  of  the  prop- 
erty were.     Inquiries  were  made,  and  it  was  then  for  the  first  time 

18 


274  LLOYD'S   BANKING   CO.   V.  JONES.  [CHAP.  11. 

discovered  tluit  the  deeds  were  with  tlie  bank.  In  April,  1883,  Jones 
gave  notice  of  the  settlement  to  the  bank,  and  claimed  the  deeds  from 
them.  This  was  the  first  notice  which  the  bank  had  of  the  settlement. 
The  bank  insisted  that  their  charge  was  entitled  to  priority,  and  they 
brouglit  this  action  against  Jones  and  the  infant  T.  J.  Adams,  claim- 
ing a  declaration  that  they  were  entitled  to  a  valid  equitable  mortgage 
of  the  property,  and  asking  for  foreclosure  or  sale.  Chance  had  filed 
a  liquidation  petition.  Before  the  trial  of  the  action,  both  he  and  King 
had  died. 

Cozens-IIanJij,  Q.  C,  and  W.  Pipson  Beale,  for  the  plaintiffs. 

C.  n.  Turner,  and  Oover,  for  the  defendants. 

Pearson,  J.  The  question  is,  whether  under  the  circumstances,  the 
bank  are  entitled,  although  they  are  only  equitable  mortgagees,  to 
priority  over  the  legal  estate  vested  in  the  trustee  of  the  settlement. 
It  is  said  that  the  infant  defendant  has  a  better  equity  than  the  trustee 
has.  I  demur  to  that  proposition  entirely.  I  think  I  should  be  intro- 
ducing a  most  fatal  doctrine  if  I  were  to  say  that,  when  the  legal  estate 
in  property  is  vested  in  a  trustee  under  a  marriage  settlement,  the  simple 
fact  that  his  cestuis  qrie  trustent  are  ignorant  of  what  he  is  doing  gives 
them  a  prior  equity  over  any  person  who  has  dealings  with  him,  and 
who  is  equally  ignorant  of  the  existence  of  the  settlement  and  of  the 
rights  of  the  cestuis  que  trustent.  The  question  is,  there  being  two 
equities,  and  one  of  them  clothed  with  the  legal  estate,  which  of  them 
is  entitled  to  priority.  The  defendants'  counsel  have  argued  that  the 
equity  of  the  cestui  que  trust  is  prior  in  time  to  that  of  the  bank,  be- 
cause they  say  the  equity  of  the  cestui  que  trust  arose  on  the  25th  of 
May,  or  at  all  events  on  the  29th  of  May,  1877,  whereas  the  equity  of 
the  bank,  arising  under  the  second  memorandum,  did  not  come  into 
esse  until  the  26th  of  January,  1878,  and  if  the  equities  are  equal, 
then  qui  prior  est  tempore  potior  est  jure.  But  the  first  question  I 
have  to  determine  is  whether  the  equities  are  equal.' 

I  think,  upon  the  authorities  which  have  been  cited,  and  which  are 
so  well  known,  that  it  would  be  pedantry  for  me  to  go  over  them  again, 
the  doctrine  of  this  court  has  always  been,  that,  whei-e  there  are  equi- 
ties which  are  otherwise  equal,  the  possession  of  the  deeds  gives  priority 
to  the  person  who  has  got  them,  and  under  these  circumstances  I  must 
decide  that  the  banking  company,  although  only  equitable  mortgagees, 
are  entitled  to  priority  over  the  defendants  for  the  an)ount  due  to  them 
or  tlieir  security  at  the  time  when  they  received  notice  of  the  settlement.^ 

1  The  learned  judge  found  that  the  trustee  had  been  negligent,  and  that  the  Bank- 
ing Company  had  acted  with  rea-sonalile  caution.  His  opinion  on  these  points  is 
omitted,  as  well  as  the  arguments  of  counsel.  —  Ed. 

2  There  is  an  adverse  criticism  of  this  case  ia  30  Sol.  J.  72.  —  Ed. 


SECT,  n.]  IN  KE  BAEKER.  275 


SECTION  II.  (continued). 
(e)  Cestui  que  Tbust  cannot  vote  as  Owner  of  the  Res. 

In  the  Matter  of  the  Application  of  JACOB  BARKER,  relamve 
TO  THE  Election  of  Directors  of  the  MERCANTILE  INSUR- 
ANCE COMPANY  OF  NEW  YORK. 

In  THE  Supreme  Court,  New  York,  January,  1831. 

[Reported  in  6  Wendell,  509.] 

An  election  of  directors  of  the  Mercantile  Insurance  Company  of 
New  York  was  holden  on  the  10th  of  January,  1831.  Jacob  Barker 
demanded  to  vote  on  1,290  shares  of  stock  standing  in  his  name  on 
the  books  of  the  company,  1,255  in  his  own  right,  and  35  as  trustee 
for  his  minor  children.  His  vote  was  challenged,  and  the  challenge 
allowed  by  the  inspectors.  Had  he  been  permitted  to  vote  on  the 
whole  number  of  shares  standing  in  his  name,  Samuel  Hazard,  and  six 
other  persons  named  in  the  proceedings,  who  the  inspectors  certified 
were  duly  elected,  would  not  have  been  elected,  but  seven  other  per- 
sons, for  whom  Jacob  Barker  offered  to  vote,  would  have  beeu  elected 
in  their  stead  ;  or  had  he  been  permitted  to  vote  only  on  the  35  shares 
held  by  him  as  trustee,  the  effect  would  have  been  to  have  given  a 
majority  of  votes  to  four  individuals,  who  were  voted  for  at  the  elec- 
tion as  directors,  and  who  were  not  returned  as  elected  over  Samuel 
Hazard  and  five  other  persons,  who  had  an  equal  num])cr  of  votes, 
and  who  were  returned  duly  elected.  The  objection  to  Barker's, voting 
on  the  1,255  shares  was,  that  they  were  hypothecated  to  the  company 
to  their  full  value.  The  company  was  incorporated  in  1818.  This 
case  also  presented  the  question  whether  an  alien  stockholder  of  this 
company  has  the  riglit  to  vote  by  proxy,  such  vote  having  been  offered 
and  rejected  by  the  inspectors.^ 

The  case  was  argued  by 

Jacob  /inrker,  in  pro.  per.  for  the  motion. 

W.  JI.  Bidkley,  contra. 

By  the  Court,  Savage,  C.  J.  In  the  case  Ex  parte  Holmes,*  we 
set  aside  an  election  of  directors  of  an  insurance  company,  because  a 
trustee  had  been  allowed  to  vote  upon  stock  belonging  to  tlic  conip.iny  ; 
not  because  a  trustee  had  been  permitted  to  vote  instead  of  the  ceMui 
que  trust,  but  for  tiic  reason  that  the  stock  in  that  case  could  not  be 
voted  upon,  it  being  the  property  of  the  company,  controlled  by  its 
ortjcers ;  and  we  held,  that  neither  within  the  meaning  of  the  charter 

'  So  mnch  of  the  case  as  relates  to  this  question  is  omitted.  —  Ed. 
'  5  Cow.  426. 


276  IN   KE  BARKER.  [CHAP.  II. 

of  the  compau)',  nor  of  the  act  under  which  the  proceedings  were  had, 
couhl  it  be  tolerated,  that  the  olllcers  of  a  moneyed  i«stitution  should 
wield  such  stock,  however  obtained,  to  control  the  result  of  an  election 
of  directors.'  8uch  is  the  principle  settled  by  that  case,  and  what  was 
said  in  relation  to  the  rights  of  a  trustee  or  cestui  que  trust  to  vote  on 
stock,  standing  in  the  name  of  the  trustee,  either  generally  or  specially, 
in  his  representative  character,  was  said  in  reference  to  the  peculiar 
circumstances  of  the  case.  The  court  never  could  have  doubted  the 
right  of  a  person  to  vote  upon  stock  standing  in  his  name,  although 
held  by  him  in  trust  for  another ;  the  legal  estate  is  in  him,  and  until 
divested  by  assignment,  either  voluntary  or  compulsory,  he  is  the  only 
person  entitled  to  vote.'^  Indeed,  the  case  Ex  parte  Holmes  admits 
that  if  the  stock  stands  in  the  name  of  the  trustee  without  expressing 
any  trust,  he  has  the  right  to  vote.  Jacob  Barker,  therefore,  was  en- 
titled to  vote  upon  the  35  shares  holden  by  him  as  the  trustee  of  his 
minor  children. 

He  was  also  entitled  to  vote  upon  the  1,255  shares  standing  in  his 
name  in  his  own  right,  although  they  were  hypothecated  to  their  full 

1  American  Co.  v.  Haven,  101  Mass.  402  Accord.  —  Ed. 

2  Newry  Co.  v.  Moss,  14  Beav.  64,  67  {semble) ;  Re  Stanton  Co.,  16  Eq.  559  ;  Pender  v. 
Lushington,  6  Ch.  D.  70;  Moffat  v.  Farquhar,  7  Ch.  D.  591  ;  Moore  v.  Jones,  3  Woods 
C.  C.  53,  55  (semble) ;  Re  Mohawk  Co.,  19  Wend.  135;  A'e  Long  Island  Co.,  19  Wend. 
37 ;  Adderly  r.  Storm,  6  Hill,  624,  628 ;  North  Shore  Co.,  63  Barb.  556 ;  Wilson  v. 
Central  Co.,  9  R.  I.  590  Accord.  But  if  a  trustee  would,  by  voting  against  the  wishes 
of  the  cestui  que  trust,  cause  irreparable  mischief  to  the  latter,  a  court  of  equity  would 
issue  an  injunction  to  restrain  the  trustee  from  so  voting.  McHenry  v.  Jewett,  90 
N.  Y.  58.  See  also  Vowell  v.  Thompson,  3  Cranch.C.  C.  428  ;  Wilson  v.  Central  Co.,  9 
R.I.  590;  Hoppin  v.  Buffum,  9  R.  I.  513  "The  trustee,  as  the  legal  proprietor, 
had  originally  the  right  of  voting  for  coroners.  Burgess  v.  Wheate,  1  Eden,  251  ;  (a) 
but  by  58  Geo.  HI.  c.  95,  §  2,  it  was  transferred  to  the  cestui  que  trust  in  possession. 
This  act,  however,  was  repealed,  7  &  8  Vict.  c.  92,  [and  the  matter  stood  as  it  did 
before  any  legislative  interference.  Regina  v.  Day,  3  Ell.  &  Bl.  859.  Coroners  are  not 
now  elected  by  the  freeholders,  51  &  52  Vict.  c.  41,  §  5.] 

"  So  the  trustee  was  the  person  entitled  at  common  law  to  vote  for  members  of 
Parliament.  Burgess  v.  Wheate,  1  Eden,  251,  per  Lord  Northington.  But  by  the 
seventy-fourth  section  of  6  &  7  Vict.  c.  28,  it  is  enacted,  that  '  no  trustee  of  any  lands 
or  tenements  shall  in  any  case  have  a  right  to  vote  in  any  such  election  for  or  by 
reason  of  any  trust  estate  therein,  but  that  the  cestui  que  trust  in  actual  possession 
or  in  the  receipt  of  the  rents  and  profits  thereof,  though  he  may  receive  the  same 
through  the  hands  of  the  trustee,  shall  and  may  vote  for  the  same  notwithstanding 
such  trust;'  and  by  the  fifth  section  of  30  &  31  Vict.  102,  the  right  of  voting  is  con- 
ferred upon  persons  who  are  seised  at  law  or  in  equity  of  lands  or  tenements  of  the 
yearly  value  of  five  pounds."  Lewin,  Trusts  (9th  ed.)  247-248.  See  Spencer  v.  Har- 
rison, 5  C.  P.  D.  97. 

The  trustee  has  the  right  of  appointing  the  steward  of  a  manor.  Mott  v.  Bux- 
ton, 7  Ves.  201  ;  and  the  right  of  presentment  to  an  advowson  ;  Anon.,  Keilw.,  160  b. ; 
Anon.,  Keilw.  47,  pi.  2 ;  Re  Shrewsbury  School,  1  M.  &  Cr.  632,  647.  But  in  both  cases 
the  trustee  should  act  in  accordance  with  the  wish  of  the  cestui  que  trust.  Lewin, 
Trusts  (9th  ed.),  246.  — Ed. 

(a)  And  Lord  Northington  added  for  "  sheriffs"  (Burgess  v.  Wheate,  I  Eden,  251 ), 
but  the  election  of  sheriffs  had  been  transferred  from  the  people  to  the  chancellor, 
treasurer,  and  judges,  by  9  E.  IL  st.  2,  before  the  establishment  of  trusts. 


SECT.  II.]  IN   EE  BARKER.  277 

value.^  So  was  the  decision  of  the  court  in  Ex  j^arte  "Willcocks,^  where 
we  held,  that  until  the  pledge  was  enforced,  and  the  title  made  abso- 
lute in  the  pledgee,  and  the  name  changed  on  the  books,  the  pledgor 
should  be  permitted  to  vote.^  The  restriction  in  the  Revised  Statutes, 
that  hypothecated  stock  shall  not  be  voted  upon,  applies  only  to  cor- 
porations created,  renewed,  or  extended  subsequent  to  1st  January, 
1828.  The  Mercantile  Insurance  Company  was  created  long  previous 
to  that  date. 

A  rule  must  therefore  be  entered  declaring  null  and  void  the  election 
of  Samuel  Hazard  and  the  six  other  persons,  who  would  have  had  a 
minority  of  votes  had  the  vote  of  Jacob  Barker  been  allowed ;  and 
that  "William  Israel  and  the  six  other  persons  for  whom  Jacob  Barker 
offered  to  vote,  and  who  would  have  had  a  majority  of  the  votes  had 
the  vote  of  Jacob  Barker  been  received,  are  duly  elected  du'ectors  of 
the  company.* 

»  Mercliants'  Bank  v.  Cook,  4  Pick.  405;  Hoppin  v.  Buffum,  9  R.  I.  513  Ac- 
cord. —  Ed. 

2  7  Cow.  402. 

8  Scholefield  v.  Union  Bank,  2  Cranch,  C.  C.  115  Accord. 

A  registered  pledgee  has  the  right  to  vote.  Moore  v.  Jones,  3  Woods,  53,-  55 ; 
Adderly  v.  Storm,  6  Hill,  624,  628;  Hoppin  v.  Buffum,  9  R.  I.  513.  But  see  contra, 
Miller  v.  Murray  (Colo  1892),  30  Pac.  R.  46  (statutory) ;  McDaniels  v.  Flower  Co.,  22 
Vt.  274.  —  Eu. 

*  Meaning  of  "  Owner  "  in  Various  Statutes.  —  The  context  must  determine  in 
each  case  in  what  sense  the  term  "  owner  "  is  employed.  B..t,  in  general,  the  word  is 
used  to  designate  the  trustee  rather  than  the  cestui  que  trust.     E.g.:  — 

Trust  prupcrty  in  the  possession  of  the  trustee  does  not  pass,  u])on  his  hankruptcy, 
to  his  assignees  under  the  English  Bankruptcy  Acts,  as  property  left  in  tlie  order  and 
disposition  of  the  bankrupt  by  the  consent  and  disposition  of  the  true  owner.  Copeman 
V.  Gallant,  1  V.  Wms.  314 ;  Joy  v.  Campbell,  1  Sch.  &  Lcf.  328 ;  I'J.r  jiarte  Horwood,  Mont. 
&  M.  169  ;  Mont.  24  ;  E.r  parte  Thomas,  3  M.,  D.  &  1).  40,  48  {semhle)  ;  Ex  jntrte  Geavcs, 
8  D.,  M.  &  G.  291  ;  Re  Bankhead's  Trust,  2  K.  &  J.  560 ;  Great  Eastern  R.  R.  i;.  Turner, 
L.  R.  8  Cli.  Ap.  149  (exj)laining  and  distinguisliing  Ex  parte  Burbridgo,  1  Dea.  131  ; 
8.  C.  sub  nom.  Ex  jiarte  Watkins,  2  Mont.  &  A.  348;  Ex  parte  Ord,  2  Munt.  &  A. 
724).  In  Re  Bankhead's  Trust,  supra.  Sir  W.  Page  Wood,  V.-C,  said,  p.  565:  "  If 
you  once  get-  a  suflicicnt  declaration  of  trust  by  a  jjarty  wlio  is  the  s<ile  trustee,  he  is 
the  proper  person  to  be  in  possession  of  the  jjolicy,  —  in  otlicr  words,  he  is  the  '  true 
owner,'  within  the  meaning  of  the  act ;  and  he  being  also  in  the  reputed  possession  of 
the  property  when  the  bankruptcy  takes  place,  there  is  no  separation  of  interest, — 
the  true  owner  and  the  roputcd  owner  are  tlie  same  person."  But  the  assignee  of  a 
chose  in  action  or  equitable  interest,  on  the  otlier  hand,  is  regarded  as  tlie  "true 
owner"  within  those  acts.  Accordingly,  if  tiic  .assignee  fails  to  notify  the  obligor  of 
the  a.ssignment,  the  chose  in  action  or  other  interest  assigned  will  pa^s  njion  the 
bankrnjitry  of  the  assignor  to  tlm  batter's  assignees  in  ]i.iiikrn|)tcy,  and  that,  too, 
although  the  instrnment  containing  the  olilig.ation  was  delivered  to  the  assignee  at 
the  time  of  the  assignment.  See  cases  cited  in  Ames,  Cases  on  Trusts  (Ist  ed.), 
561,  562,  n. 

So  also  in  the  Bills  of  Sale  Act,  45  &  46  Vict,  c.  43,  §  5 ;  Re  Sarle,  '92, 2  Q.  B.  591. 
For  other  instances  see  Mclntyre  v.  Easton  Co.,  28  N.  J.  Eq.  425 ;  Nat.  Co.  v.  Ea/»tern 
Co.,  36  N.  J.  181.  In  Tntt  v.  Rftilw.iy  Co.,  2R  S.  C.  388.  "owner  "  was  thonght  to  apply 
to  the  cextni  (pie  tru.it ;  in  I'ef)pIo  v.  Coleman,  119  N.  Y.  137,  the  word  was  thought  to 
designate  one  who  had  the  beneficial  intereflt  as  well  as  the  legal  title.  —  £d. 


278  LATROBE  V.   MAYOR;  ETC.   OF  BALTIMORE.  [CHAP.  IL 


SECTION   II.  (continued). 

(/)  The  Burdens  incident  to  Ownership  fall  upon  the  Trustee,  and  not 

UPON  THE  Cestui  que  Trust. 

TRINITY  COLLEGE   IN   CAMBRIDGE  v.   BROWNE. 
In  Chancery,  before  Lord  Jeffreys,  C,  February  27,  1686. 

[Reported  in  1  Vernon,  441.] 

The  bill  was  to  discover  the  best  beast  of  cestui  que  trust  of  a  col- 
lege lease :  the  defenclaut  demurred,  for  that  the  best  beast  of  the 
cestui  que  trust  could  not  be  taken  for  a  heriot :  and  it  also  appeared 
of  the  plaintiff's  own  showing  that  the  tenants,  who  had  the  estate  in 
law  in  them,  were  yet  living.  The  demurrer  was  allowed.^ 


JOHN  H.  B.  LATROBE,  Trustee,  v.  THE  MAYOR  AND  CITY 
COUNCIL  OF  BALTIMORE. 

In  the  Court  of  Appeals,  Maryland,  October  27,  1862. 

[Reported  in  19  Maryland  Reports,  13.] 

Cochran,  J.,  delivered  the  opinion  of  the  court.'^  This  is  an  appeal 
from  a  judgment  obtained  in  a  suit  at  law,  brought  to  recover  taxes 
assessed  on  mortgages  of  property  in  the  city  of  Baltimore,  made  to 
the  appellant  as  trustee  of  the  estate  of  Joseph  Thornburg,  deceased. 
At  the  time  of  the  assessment  and  institution  of  the  suit  the  appel- 
lant was  a  resident  of  Howard  County,  the  cestui  que  trusts  being, 
at  the  same  time,  residents  of  Baltimore  City,  and  the  question  as 
to  the  liability  of  the  appellant  for  the  taxes  assessed  is  the  only 
one  presented. 

We  are  not  aware  that  the  acts  of  assembly,  regulating  the  imposi- 
tion and  collection  of  taxes,  have  effected  any  modification  of  the 
rules  of  law,  which  otherwise  must  govern  the  determination  of  this 
question.     The  appellee,  in  resorting  to  its  remedy  at  law,  assumes 

1  So  the  tru.stee,  and  not  the  cestui  que  trust  of  a  copyhold,  must  pay  the  fine  on 
admiagion.  Earl  of  Bath  v.  Abney,  1  Dick.  260,  I  Burr.  206,  s.  c. ;  Londesborough  v. 
Foster,  .3  B.  &  S.  805  ;  Hall  v.  Bromley,  35  Ch.  Div.  642,  65.5,  per  Lindley,  L.  J. : 
"  Admittance  and  the  right  to  admittance  depend  upon  the  legal  estate,  and  the  lord 
can  look  at  that  only,  and  has  nothing  to  do  with  any  equitable  devolution  of  title." 
—  Ed. 

a  See  supra,  70,  n.  1.  —  Ed. 


SECT.  II.]  LATROBE  V.   MAYOR,  ETC.   OF  BALTIMORE.  279 

that  the  taxes  assessed  constitute  a  legal  cause  of  action,  and  that  the 
appellant,  as  the  holder  of  the  legal  title  of  the  property  upon  which 
the  assessment  was  made,  is  liable  for  its  satisfaction.  That  taxes 
assessed  upon  a  trust  estate  constitute  a  legal  cause  of  action  against 
the  holder  of  the  legal  title  we  do  not  doubt,  for  at  law  the  legal  estate 
in  the  hands  of  a  trustee  has  the  legal  incidents  and  obligations  of  an 
absolute  title,  subject  only  to  the  claims  in  equity  of  the  cestui  que  trust} 
Crabb  on  Real  Property,  55  Law  Lib.  399  ;  97  Law  Lib.  257  ;  Willis 
on  Trustees,  10  Law  Lib.  21,  72,  83  ;  Denton  v.  Denton.^ 

In  this  case,  the  appellant  was  the  holder  of  the  legal  estate  upon 
the  valuation  of  which  the  taxes  sought  to  be  recovered  were  imposed, 
and  upon  our  construction  of  the  thirteenth  article  of  the  Bill  of  Rights, 
as  well  as  upon  the  general  rule  stated,  he  was  the  proper  person  to  be 
assessed  for  their  payment.  The  declaration  in  that  article  of  the  duty 
or  obligation  of  every  person  holding  property  in  the  State  to  contrib- 
ute his  proportion  of  public  taxes,  according  to  his  actual  worth  in 
real  or  personal  property,  must  be  understood  as  intending  and  mean- 
ing a  legal  obligation  to  contribute  to  the  public  taxes,  according  to 
actual  wortli,  and  in  that  sense  the  obligation  for  the  payment  of  taxes 
falls  upon  the  trustee  or  holder  of  the  naked  legal  title.  Upon  this 
construction  the  obligation  of  one  entitled  to  the  beneficial  interest  of 
property  held  by  a  trustee,  to  contribute  to  the  public  taxes,  according 
to  actual  worth,  is  none  the  less  satisfied  ;  for  in  such  a  case  the  assess- 
ment of  the  tax  to  tlie  holder  of  the  legal  estate,  through  him,  reaches 
and  fastens  upon  the  interest  of  the  beneficial  owner.  In  our  opinion, 
a  like  construction  should  be  given  to  the  provisions  of  the  acts  of 
1841,  c.  23,   1847,  c.  24G,  and  1852,  c.  327,  requiring  all  property 

1  Kc^inat'.  Stcrry,  12  A.  &  E.  84  ;  Queen  v.  Stapiltoii,  4  B.  &  S.  G29  ;  Ring  v.  Ewing, 
47  Ind.  246  ,  Tax  Court  i-.  Gill,  .50  Md.  377  ;  Dorr  v.  Boston,  0  Gniy,  1.31  ;  Kichanlsou 
V.  Boston,  148  M.xss.  508  ;  Ball  v.  Sawyer,  59  N.  H.  393  ;  People  v.  Assessors,  40  N.  Y. 
1.54  (comparo  TVoj.le  r.  Coleman,  11 9  \.  Y,  137) ;  LcwIh  v.  Chester,  f.O  Pa.  32.') ;  Aiitliony 
V.  Ca.swell,  l.")  R.  I.  159;  Re  Ailman  (R.  I.  1891 ),  22  Atl.  H.  279  /1<<«7(/.  In  some  juri.s- 
lUctiouB,  taxes  on  personal  property  held  in  trust  are  payable  hy  the  trustees,  hut,  hy  stat- 
ute, at  the  pl.ice  of  residenre  of  the  rfstm  i/ue  trust.  Anthony  v.  Ca.swcll,  15  R.  I.  159  ; 
lie  Ailman  (R.  I.  1892),  22  Atl.  R.  279.  Personalty  iield  in  trn.^t  l)y  a  foreign  trustee  is 
not.  as  a  rule,  taxable  either  to  the  trustee  or  cestui  (jm  tmst,  although  tiie  latter  resides 
within  tlie  jurisdiction.     Dorr  v.  Boston,  G  Gray,  131  ;  Anthony  c  C.a.s\vell,  15  R.  1. 159. 

Similarly  tlie  trustee  and  not  tiic  ci-slui  i/ue  truKl  is  the  proper  party  defendant  upon 
other  otdig.'itions  incident  to  tlie  ownership  of  the  trust-res ;  e.  g.  covenants  running 
with  tiio  land.  White  r.  Hunt.  L.  R.  fi  V.t\.  32  ;  assessments  upon  shares  in  a  stock 
company,  Newry  v.  Moss,  14  Beav.  64;  Holt's  Case,  1  Sim.  N.  s.  389;  Fcnwick's 
Case.  1  l)e  G.  &  Sm  557  ;  T'riee  r  Brf.wn,3  l)e  G.  &  Rm.  146  ;  Re  Leeils  Co.,  12  .lur. 
N.  H.  60;  IIo.are'H  Case,  2  J.  &  H.  229;  Imperial  A.ssoci.ation,  3  Eq.  301  ;  Er  jnuie 
Oriental  Bank,  3  Ch.  791  ;  Mitchell's  Case.  9  Eip  363  ;  Hemming  i;.  Maddick,  7  Ch. 
395,  9  Kq.  175;  Ind's  Case,  7  Ch.  4H.',  ;  (lillespie  v.  Glasgow  Bank.  4  Ai)i>.  Cas.  632; 
Muir's  (  a.sc,  4  App.  Ca.s.  .337  ;  Hughes  Ilallett  v.  Indian  Co.,  22  Ch.  P  561  ;  Lnmsilen 
i;.  Buchanan,  4  Macq.  950;  Wolf  v.  St.  Louis  Co.,  15  Cal.  319  ;  McKim  v.  (Jlenn,  66 
Md.  479  ;  Crease  v.  Bahcock,  10  Met.  525  ;  Grew  v.  Breed,  10  Met.  569  ;  /?/•  Empire 
Bank,  1 H  \.  Y.  1 99  ;  Stover  v.  Fl.ack,  30  N.  Y.  64 ;  Mauu  u.  Currie,  2  Barb.  294.  —  Ed. 

2  17  Md.  403. 


2S0  SCHWAB  V.   CLEVELAND.  [CHAP.  IL 

owned  by  persons  rositlouts  of  this  State,  and  not  permanently  located 
olsewhero  within  tiie  .State,  to  be  vahied  to  the  owner  in  the  county, 
district,  or  city  wherein  he  or  she  may  reside,  or,  in  other  words,  that 
'  these  provisions  contemplate  and  mean  the  holding  or  ownership  of  the 
legal  estate  of  the  property  to  be  valued,  without  regard  to  the  owner- 
ship of  the  equitable  title  or  use.  Adopting  this  view,  we  have  then  to 
ascertain  the  location  of  the  property  for  which  the  taxes  claimed  were 
assessed,  in  order  to  dispose  of  the  question  presented.  Upon  the 
principle  that  the  possession  of  personalty  follows  the  person  owning 
the  legal  title,  the  mortgages,  on  the  valuation  of  which  the  assessment 
of  the  taxes  in  this  case  was  made,  so  far  as  they  could  be  made  the 
basis  of  an  assessment,  were  beyond  the  jurisdiction  of  the  appellee. 
The  assessment,  in  such  cases,  is  made  upon  the  amount  of  the  mort- 
gage debt,  and  not  upon  the  value  of  the  property  mortgaged  to  secure 
it.  As  the  basis  of  the  assessment  is  the  amount  of  the  debtor's  obli- 
gation to  the  creditor,  the  recording  of  a  mortgage  in  another  county 
or  district  than  that  of  the  creditor's  residence,  collaterally  securing 
its  satisfaction,  cannot  have  the  effect  of  locating  the  debt  where  the 
mortgage  is  recorded. 

We  think  the  taxes  sought  to  be  recovered  in  this  case  were  assessed 
without  authority,  and  therefore  reverse  the  judgment. 

Judgment  reversed. 


JOHN   SCHWAB,  Respondent,  v.  FREDERICK  E.  CLEVE- 
LAND, A  Trustee,  etc.,  Appellant,  and  Another. 

In  the  Supreme  Court,  New  York,  December  Term,  1882. 

[Reported  in  28  Hun,  458.] 

Appeal  from  a  judgment  in  favor  of  the  plaintiff,  entered  upon 
the  verdict  of  a  jury,  and  from  an  order  denying  a  motion  for  a  new 
trial,  made  upon  the  minutes  of  the  justice  before  whom  the  action 
was  tried. 

The  action  was  brought  to  recover  damages  for  injuries  done  to  the 
plaintiff's  premises  by  the  escape  of  water  from  a  leader  upon  the 
house  or  the  premises  owned  by  the  defendant  Cleveland,  as  trustee. 

J.  Hampden  Dougherty  and  Frederick  E.  Cleveland,  for  the  appellant. 

Borland  &  Hess,  for  the  respondent. 

Barnard,  P.  J.  There  is  considerable  conflict  of  authority  as  to 
the  necessity  of  notice  and  request  to  remove  a  nuisance,  where  the 
same  was  created  by  a  previous  grantor  of  the  owner  sued.  The 
weight  of  the  cases  seems  to  be  in  favor  of  notice,  but  against  a  re- 
quest to  remove.^ 

1  Conhocton  Stone  R.  v.  Buffalo,  N.  Y.  and  Erie  R.  R.,  51  N.  Y.  573. 


SECT.  II.]  SCHWAB  V.   CLEVELAND.  281 

This  case  is  not  one,  however,  in  which  that  principle  can  be  in- 
voked. The  evidence  shows  that  the  defendant's  grantor  carried  the 
water  from  her  roof  through  a  pipe  into  the  drain  along  or  very  near 
plaintiffs  premises.  It  was  imperfectly  built,  for  it  began  to  leak 
into  plaintiff's  premises  soon  thereafter.  The  premises  were  conveyed 
to  defendant  as  trustee  in  1878,  and  he  has  since  owned  them.  Dur- 
ing all  that  time  he  has  failed  to  protect  the  plaintiff  from  this  leak. 
AVhen  the  owner  of  premises  collects  the  water  which  naturally  falls 
upon  the  same  into  one  place,  and  conducts  it  from  there  by  a  pipe  to 
his  drain,  he  undertakes,  at  all  hazards,  that  his  pipe  shall  be  both 
sufficient  and  shall  continue  so  as  to  the  adjoining  owner.  It  is, 
therefore,  no  answer  to  the  plaintiff's  claim,  for  the  defendant  to  say 
that  he  did  not  know  of  the  leak.  He  was  bound  to  do  his  duty  by 
his  own  premises.  It  is  the  owner  who  is  liable  and  never  the  tenant 
in  possession  unless  the  tenant  has  agreed  to  keep  in  repair.^  .   .   .  ^ 

There  is  no  force  in  the  objection,  that  the  defendant  cannot  be 
made  liable  as  trustee.  He  owns  as  trustee,  and  owes  the  duty  as 
owner  to  keep  his  pipes  and  drains  from  injuring  his  neighbor  by  rea- 
son of  faulty  construction  or  from  being  suffered  to  get  in  bad  repair. 

Whether  as  between  himself  and  the  beneficiary  he  can  collect  the 
damage  from  the  trust  estate  is  a  question  not  now  before  us. 

Upon  the  whole  case  the  judgment  should  be  affirmed,  with  costs.' 

1  Bellows  V.  Sackett,  15  Barb.  96. 

-  A  portion  of  the  opiuion  foreign  to  trusts  is  omitted.  — Ed. 

8  Norling  v.  Allee,  10  N.  Y.  Sup.  97,  13  N.  Y.  Sup.  791  Accord.  The  cestui 
que  tfust  is  not  indictable  for  a  nuisance;  People  v.  Townsend,  3  Hill,  479,  in  which 
case  the  opiuion  of  the  court  is  stated  as  follows  by  Brouson,  J. :  "  The  prosecu- 
tion must  fail,  for  the  defendants  are  not  the  owners  of  the  property.  Burnett  is 
the  owner.  The  admission  is,  'that  the  title  in  fee  was  held  by  Moses  D.  Burnett  as 
trustee  for  the  defendants,  who  are  cestuis  que  trust  of  the  property.'  If  '  the  title  iu 
fee '  is  in  Burnett,  it  is  of  no  importance  that  lie  holds  as  a  trustee,  or  that  the  tlefend- 
ants  are  beneficially  interested  in  the  trust.  Under  our  code,  those  trusts  which  pass 
the  title  to  the  land  '  vest  the  whole  estate  in  tlie  trustees,  in  law  and  in  eciuity,  sub- 
ject only  to  the  execution  of  the  trust ; '  and  '  tlie  persons  for  whose  benefit  tlic  trust 
is  created  take  no  estate  or  interest  in  the  lands,  but  may  enforce  tlie  execution  of  tlie 
trust.'  1  R.  S.  729,  §  60.  If  the  fact  be,  a.s  was  suggested  on  the  argument,  that 
Burnett  has  nothing  more  tlian  a  j)Ower  in  trust  to  sell  and  convey,  then  the  defend- 
ants are  owners  of  the  proj)erty,  and  the  admission  on  the  trial  that '  the  title  '  was  ia 
Burnett  must  h.ave  hajipeiiod  through  inadvertence.  But  we  must  take  the  case  as  it 
stands,  and  then  I  see  no  principle  on  which  the  prosecution  can  be  maintained. 
When  the  title  passos  to  the  tnistee,  ho  takes  the  rents  and  profits  of  tlic  land,  and  if 
lie  uses  or  j)ermit8  the  property  to  bo  used  in  a  mode  which  proves  injurious  to  tho 
public,  it  is  Ilia  fault,  and  he  must  answer  for  it."  Compare  Eiseubrey  v.  I'a.  Co.,  141 
Pa.  566.  —  Eu. 


282  NOTK  [chap,  iil 


CHAPTER  III. 
THE  TRANSFER  OF  TRUST  PROPERTY. 


SECTION  I. 

By  Act  of  the  Party. 

(a)  By  Act  op  the  Trustee. 

NOTE. 
In  the  ,  1453. 

[Reported  in  Fitzkerbert's  Abridgment,  title  Subpoena,  placitum  19.] 

If  I  enfeoff  a  man  to  perform  my  last  will  and  he  enfeoffs  another, 
I  cannot  have  a  subpoena  against  the  second  because  he  is  a  stranger, 
but  I  shall  have  a  subpama  against  my  feoffee  and  recover  in  damages 
for  the  value  of  the  land.  Per  Yelverton  and  Wilby,  clerks  of  the 
rolls,  who  said  that  if  my  feoffee  in  confidence  enfeoffed  another  upon 
confidence  of  the  same  land,  that  I  should  have  a  subpana  against  the 
second,  but  otherwise  when  he  was  enfeoffed  bona  Jide,  for  then  I  am 
without  remedy,  and  so  it  was  adjudged  in  the  case  of  the  Cardinal 
Winchester.^ 

1  Anon.  (1502)  Keilw.  46,  b,pl.  7.  Per  Frowike,  C.  J. :  "  If  he  [the  feoffee  to  uses] 
makes  a  feoffment  over,  the  feoffor  [i.  e.  the  cestui  que  use]  has  no  remedy  against  the 
feoffee  ;  the  same  law  if  he  dies,  the  heir  of  the  feoffee  is  seised  as  I  think  to  his  own 
use,  for  the  confidence  which  the  feoffor  put  in  the  person  of  his  feoffee  cannot  descend 
to  his  heir  nor  pa,ss  to  the  feoffee  of  the  feoffee,  but  the  latter  is  feoffee  to  his  own  use 
as  the  law  was  taken  until  the  time  of  H.  [E  ?]  IV.  But  if  the  second  feoffee  has 
notice  of  the  use,  they  in  the  chancery  will  reform  this  by  subpoena  at  this  day ;  and 
the  heir  of  the  feoffee  upon  confidence  was  sei.sed  to  his  own  use  until  the  commence- 
ment of  E.  IV.,  and  then  the  subpoena  began  against  the  heir  and  against  the  feoffee 
of  the  feoffee."  — Ed. 


SECT.  I.]  ANONYMOUS.  -      283 


ANONYMOUS. 
In  the  Common  Pleas,  Michaelmas  Term,  1522.  ' 

\Reported  in  Year  Book,  14  Henry  VIII.,  folio  4,  placitum  5.] 

One  J.  S.  sued  a  replevin  for  his  cattle  tortlously  taken. 

The  defendant  avowed  for  that  J,  D,  and  J  B.  were  seised  of  a 
ploughland  of  land  in  their  demesne  as  of  fee  to  the  use  of  R.  N= 
by  the  feoffment  of  R.  &c.,  and  being  so  seised  granted  an  annual 
rent  out  of  the  said  ploughland  to  A.  by  the  name  of  Alice,  wife 
of  R.,  to  hold  during  the  term  of  her  life,  with  a  clause  of  distress, 
and  afterwards  Alice  married  the  defendant,  before  the  taking,  and 
for  so  much  in  arrear  he  avowed  the  taking,  &c. 

To  which  the  plaintiff  said  that  J.  D.  and  J.  B.  were  seised  to  the 
use  of  W.  N.,  and  being  so  seised  granted  the  said  rent  to  the  said  Ao 
as  alleged,  she  then  having  notice  of  the  use,  that  the  said  J.  D.  and 
J.  B.  enfeoffed  one  Halpenny  in  fee,  whereby  he  was  seised,  and  being 
so  seised,  and  Alice  also  being  seised  of  the  rent,  the  said  Wo  N,  by 
his  deed  released  all  his  right  to  the  said  Halpenny  to  him  and  his 
heirs  forever  absque  hoc  that  J.  D.  and  J.  B.  were  seised  to  the  use  of 
R.  N.  as  the  avowant  has  alleged,  &c.,  and  prays  judgment  if  this 
avowry,  &c. 

FiTz  Herbert,  J.  First  it  is  to  be  seen  to  whose  use  the  grantee 
shall  be  seised.^  I  think  he  shall  be  seised  to  the  first  use,  notwith- 
standing he  had  no  notice,  for  uses  are  at  common  law  and  not  by  the 
statutes  of  Richard,  and  a  use  is  but  a  trust  and  confidence  which 
feoffor  puts  in  his  feoffee  according  to  the  estate  which  was  at  common 
law,  for  if  a  woman  seised  of  land  at  common  law  will  upon  a  commu- 
nication of  marriage  enfeoff  one,  if  he  does  not  perform  the  trust  the 
law  gives  her  a  remed}'  to  recover  her  land  back  by  a  writ  of  entry 
causa  matrimonii  prtrJoriiti.  And  so  if  1  will  that  my  executor  sell 
my  land  which  is  devisable,  if  he  will  not,  but  takes  the  profits  to  his 
own  use,  the  heir  may  enter  upon  him  for  the  non-performance  of  his 
trust,  as  was  adjudgc(l  in  38  Lib.  Ass.  p.  3.  And  then  the  trust  is  a 
necessity,  for  a  dead  man  cannot  perform  his  own  will.  But,  sir,  ia 
this  present  case  this  feoffment  in  trust  was  only  a  pleasure  and  not  a 
necessity,  but  still  lie  is  as  much  bound  in  conscience  to  perform  his 
will  as  the  executor,  since  he  took  the  estate  to  do  it,  and  if  he  de- 
ceives him  no  one  will  say  that  he  does  well.  At  the  common  law  the 
feoffor  had  no  remedy  except  by  subpii-na,  but  now  by  the  statute 
[1  Rich.  III.  c.  1,  (ll'S3)]  he  may  enti'r  and  make  a  feoffment  accord- 
ing to  Ills  will,  if  his  feoffee  will  not  do  his  will.  I'>ut  how  a  use  shall 
be  changed  depends  upon  the  common  law  and  upon  the  estate  of  the 

'  Only  so  much  of  thr>  opinion  of  tlic  court  as  rolatos  to  this  point  is  given.  Tiie 
replication  was  hold  insufficient.     Tho  opinion  of  Brudeuel,  J.,  is  omitted.  —  Ed. 


2?4  ANONYMOUS.  [CIIAP.  III. 

foofTce,  for  if  I  enfeoff  R.  to  hold  to  him  his  heirs  and  assigns,  ray  trust 
and  eonlldont-e  are  in  him,  his  lieirs  and  assigns  :  and  this  is  easily 
shown,  for  the  heirs  will  be  bound  to  perform  the  feoffor's  will  as  much 
as  the  father,  and  the  second  feoffee  as  much  as  the  first,  if  there  is 
no  consideration,  and  so  it  is  if  the  feoffee  suffer  a  recovery  without 
n  consideration.  For  it  shall  be  intended  since  he  parted  with  the  land 
without  consideration  that  he  parted  with  it  in  the  most  proper  way, 
i.  e.  to  hold  it  as  he  held.  Foi  when  an  act  rests  in  intendment  and 
is  inditferent,  the  law  makes  tne  most  favorable  presumption,  for  if  I 
see  a  priest  and  a  woman  together  suspiciously,  still  as  long  as  there 
is  doubt  whether  he  is  domg  good  or  evil  the  former  is  to  be  presumed, 
aud  so  here.  And,  sir,  the  rent  is,  in  a  manner,  part  of  the  land,  and 
here  the  trust  was  m  the  land  out  of  which  the  rent  was  granted,  and 
this  grant  is  without  consideration,  and  it  may  be  granted  to  the  first 
use,  wherefore  it  shall  be  so  intended.  And  although  the  rent  was 
not  in  esse  and  he  had  no  use  in  it  before,  still  he  may  have  the  use. 
For  I  take  it  clearly  if  one  is  seised  of  a  seigniory  in  gross  and  grants 
it  to  his  use,  o  the  land  escheats,  that  the  feoffee  shall  nevertheless  be 
seised  to  the  first  use,  for  it  comes  in  lieu  of  the  seigniory :  and  yet  he 
had  no  use  in  the  land  before ;  and  so  one  may  grant  for  term  of  life 
and  express  the  use. 

Broke,  J.,  to  the  same  intent.  Sir,  as  the  feoffor  puts  confidence 
and  trust,  so  shall  be  his  use,  and  the  use  is  in  the  feoffor  in  con- 
science although  the  feoffee  has  the  land  by  the  common  law.  And 
so  it  is  not  like  an  estate  upon  condition  at  common  law,  for  the  whole 
inheritance  is  in  the  feoffee,  and  if  he  dies  without  heir,  the  feoffor  can- 
not enter ;  but  if  he  gives  the  land  in  tail  and  the  donee  dies  without 
heir,  he  may  enter,  and  every  dealing  with  the  land  should  be  accord- 
ing to  the  wish  of  the  feoffor.  For  if  the  feoffee  acts  otherwise,  he  is 
chargeable  in  conscience,  and  so  is  the  heir  of  the  feoffee ;  and  the 
feoffee  of  the  feoffee,  if  there  is  no  consideration  ;  and  so  is  he  who 
comes  in  by  fine  and  false  recovery.  Scilicet,  those  recoveries  in  a 
writ  of  entry  in  the  post.  For  in  all  these  cases  it  is  the  act  of  the 
feoffee,  and  being  without  consideration  the  law  intends  that  it  was 
according  tc  the  first  use  ;  and,  srr,  conscience  does  not  make  the  use, 
but  common  reason,  which  is  common  law,  which  is  indifferent  to  all 
laws  spiritual  and  temporal ;  and,  sir,  although  common  reason  says 
that  if  I  enfeoff  one  without  consideration,  this  shall  be  to  my  use,  still 
this  land  shall  be  in  the  feoffee  like  any  other  land  and  take  the  same 
course :  for  if  he  has  a  wife  and  dies,  his  wife  shall  have  dower  to  her 
own  use,  for  here  there  is  no  act  of  the  feoffee  and  she  does  not  claim 
by  the  feoffee,  but  tha  law  makes  her  estate  ;  and  so  if  he  is  bound  in 
a  statute  merchant ;  and  so  in  case  of  a  lord  taking  by  escheat,  for  m 
these  cases  there  was  no  act  by  the  feoffee  to  deceive  or  defraud  the 
feoffor,  but  it  was  done  by  order  of  the  law.  And,  sir,  the  notice,  as 
here,  is  the  important  matter,  for  if  there  was  no  notice  there  would  be 
no  use,  but  if  he  has  notice,  he  is  particeps  criminis. 


SECT.  I.]  NOTE.  285 

Pollard,  J.,  to  the  same  intent.  As  has  been  said  uses  were  at  the 
common  law  and  are  nothing  more  than  confidence  and  trust,  and  the 
feoffee  is  bound  to  act  according  to  the  trust,  otherwise  he  would  de- 
ceive his  feoffor,  which  would  not  be  reason.  And  there  is  a  diversity 
when  there  is  a  default  in  the  feoffee  in  deceiving  the  feoffor,  and  when 
not,  for  if  the  feoffee  die  his  wife  shall  have  dower,  and  so  in  case  of 
a  statute  merchant  or  escheat,  for  there  is  no  default  in  feoffee,  but 
the  operation  of  law.  But  the  default  is  in  me,  and  although  my 
feoffee  is  bound  in  a  statute  merchant,  still  I  can  enter  and  make  a 
feoffment  and  the  execution  is  discharged.  And  so  if  my  feoffee  en- 
dowed his  wife  ad  ostiian  ecdesice  and  I  re-enter,  it  is  void,  for  the 
feoffee  took  the  estate  by  my  feoffment,  and  not  by  law.  And  if  the 
feoffees  enfeoff  one  without  consideration,  it  is  the  first  use  unless  it 
be  without  notice  ;  but  if  upon  consideration  without  notice  the  use  is 
changed,  and  if  with  notice,  though  upon  consideration,  the  first  use 
remains  ;  and  tjis  is  the  diversity. 


NOTE. 

1538. 

[Reported  in  Brooke's  New  Cases,  March's  Translation,  95.] 

By  FiTziiERBERT,  J.  If  the  feoffees  to  the  use  of  an  estate  tail  sell 
the  land  to  him  that  hath  notice  of  the  first  use,  yet  the  buyer  shall 
not  be  seised  to  the  first  use,  but  to  his  own  use,  by  reason  of  the 
bargain  and  sale,  for  the  feoffees  have  the  fee  simple,  and  therefore 
their  sale  is  good.^ 

1  "  'T  is  holden  that  if  the  feoffees  seised  to  the  use  of  an  estate  tail,  or  other  use, 
are  im,;]pafle<l,  and  suffer  the  common  recovery  against  them  upon  bargain,  this  shall 
bind  the  feoffees  and  their  heirs  and  rcstuy  que  use  and  his  heirs,  where  the  buyer  and 
recoveror  hath  not  conusance  of  the  first  use:  And  by  Fitzherbert  it  shall  bind,  tho' 
they  had  notice  of  the  use ;  for  the  feoffees  have  the  fee-simple."  Bro.  New  Cases, 
March's  Transl.  91 .  "  Feoffees  in  use  make  a  lease  for  years,  rendering  rent,  to  another 
who  hath  notice  of  the  first  use,  yet  the  lease  shall  be  only  to  the  use  of  the  lessee 
himsflf.  And  tho  same  law  per  plures  though  no  rent  bo  recovered."  Bro.  New  Cases, 
March's  TrausL  92.    See  also  1  And.  314,  2  And.  82,  —  Ed. 


286  NOTE.  [chap.  m. 

NOTE. 

rURCIIASE  FOR  VALUE  WITHOUT  NOTICE. 

The  principle  that  one  who  purchases  a  legal  title  from  a  trustee  for  value  and 
without  notice  of  the  trust  acquires  the  title  discharged  from  the  trust  is  fundamental. 
Y.  B.  33  Hen.  VI.  f.  1.5,  pi.  G  ;  Y.  B.  7  Hen.  VII.  f.  12,  pi.  2  ;  Bro.  Ab.  Feff.  al  Uses, 
pi.  50 ;  Robes  v.  Bent,  Moo.  552 ;  Keynell  v.  Peacock,  2  Holle,  K.  105 ;  Rooke  v. 
Staples,  Gary,  108 ;  Clifford  v.  Langham,  Tothill,  21  ;  Cole  v.  Moore,  Moore,  806 ; 
Harding  v.  Hardrett,  Finch,  9  ;  Salsbury  v.  B.agott,  2  Swan.st.  608 ;  Ferrars  v.  Clierry, 
2  Veru.  384  ;  Mertens  v.  Jolliffe,  Amb.  311  ;  Willoughhy  v.  Willoughby,  1  T.  R.  763; 
Plumb  V.  Fluitt,  2  Anst.  432  ;  Jones  r.  Powles,  3  M.  &  K.  581  ;  Tliorndike  v.  Hunt,  3 
Ue  G.  &  J.  563  ;  Pilcher  v.  Rawlins,  L.  R.  7  Cli.  Ap.  259  ;  Heath  v.  Crealock,  L.  R.  10 
Ch.  Ap.  22  ;  Cave  v.  Cave,  15  Ch.  D.  639 ;  Kettlewell  v.  Watson,  21  Ch.  D.  685 ;  'I'aylor 
r.  BLacklock,  32  Ch.  D.  560 ;  Garnham  v.  Skipper,  55  L.  J.  Ch.  263 ;  Wright  v.  Leys, 
8  Ont.  88;  Monckton  v.  Br.addock,  Ir.  R.  7  Eq.  30  {semble);  Bayley  v.  Greenleaf,  7 
Wheat.  46  ;  Johnson  v.  Sirmaus,  69  Ga.  617  ;  Williams  v.  Swift,  79  Ga.  709  ;  Vattier 
V.  Hinde,  7  Pet.  252  {semble) ;  Boone  y.  Chiles,  10  Pet.  177  (semble) ;  Lea  v.  Polk  Co., 
21  How.  493  ;  Williams  v.  Jackson,  107  U.  S.  478;  Townsend  v.  Little,  109  U.  S.  504; 
Colo.  Co.  V.  U.  S.,  123  U.  S.  307 ;  Dexter  v.  Harris,  2  Mason,  531  ;  Fenno  v.  Sayre,  3 
Ala.  458 ;  Mundine  v.  Pitts,  14  Ala.  84  ;  Mobile  Co.  i'.  Randall,  71  Ala.  220 ;  Turner 
V.  Wilkinson,  72  Ala.  361  ;  Ricks  v.  Reed,  19  Cal.  551  ;  Waruock  (,'.  Harlow  (Cal. 
1892),  31  Pac.  R.  166;  Moye  v.  Waters,  51  Ga.  13;  Fahn  v.  Bleekley,  55  Ga.  81  ; 
McCa.skill  v.  Lathrop,  63  Ga.  96 ;  Prevo  v.  Walters,  5  111.  35  ;  Betser  v.  Rankin,  77 
111.  289 ;  Dickerson  v.  Evans,  84  111.  451  ;  Irish  v.  Sharp,  89  111.  261  ;  Bradley  i'.  Luce, 

99  111.  234;  McDavid  v.  Call,  111  111.  298;  Goodtitle  v.  Cummins,  8  Blackf.  179; 
Brown  v.  Bndd,  2  Ind.  442 ;  Beckett  v.  Bledsoe,  4  Ind.  296  ;  Crane  v.  Buchan.an,  29 
Ind.  570  ;  Ilampson  v.  Fall,  64  Ind.  382  ;  Catherwood  v.  Watson,  65  Ind.  576  ;  Derry 
V.  Derry,  74  Ind.  560 ;  Gray  v.  Coan,  40  Iowa,  327  ;  Farmers'  Bank  v.  Fletcher,  44 
Iowa,  252;  Lindsey  v.  Rankin,  4  Bibb,  482;  Moore  v.  Dodd,  1  A.  K.  Marsh.  140; 
Owings  V.  Jouitt,  2  A.  K.  Marsh.  380 ;  Halstead  v.  Bank  of  Ky,,  4  J.  J.  Marsh.  554 ; 
Desha  v.  Jones,  6  La.  An.  743  ;  Hagthorp  v.  Hook,  1  Gill  &  J.  270 ;  Molony  v.  Rourke, 

100  Mass.  190  ;  Hull  v.  Swarthout,  29  Mich.  249  ;  Cogel  v.  Raph,  24  Minn.  194;  Fulton 
V.  Woodman,  54  Miss.  158  ;  Digby  v.  Jones,  67  Mo.  104  ;  I)e  Groot  v.  Wright,  1  Stock. 
55 ;  Hogan  v.  Jaques,  19  N.  J.  Eq.  123  ;  Demarest  v.  Wynkoop,  3  Johns.  Ch.  129, 147  ; 
Whittick  V.  Kane,  1  Paige,  202  ;  Newton  v.  McLean,  41  Barb.  285  ;  Dillaye  v.  Comm. 
Bank,  51  N.  Y.  345  ;  Valentine  v.  Lunt,  115  N.  Y.  496  ;  Wilson  v.  Western  Co.,  77 
N.  C.  445 ;  Ludlow  v.  Kidd,  3  Ohio,  541  ;  Billington  v.  Welsh,  5  Binn.  129 ;  Scott  v 
Gallagher,  14  S.  &  R.  333;  Sweetzer  v.  Atterbury,  100  Pa.  18 ;  Rupp's  App.,  100  Pa. 
531  ;  Hughson  v.  Mandeville,  4  Dess.  87  ;  Lewis  v.  Taylor,  Riley,  Ch.  179  ;  Jones  v. 
Hudson,  23  S.  C.  494  ;  Perkins  v.  Hays,  Cooke,  163  ;  Bass  v.  Wheless,  2  Tenn.  Ch. 
531  ;  Chadwell  v.  Wheless,  6  Lea,  312;  Stewart  v.  Greenfield,  16  Lea,  13;  Flanagan 
V.  Oberthier,  50  Tex.  379 ;  Pepper  v.  Smith,  54  Tex.  115;  Richardson  v.  Levi,  67  Tex. 
359 ;  Tompkins  v.  Powell,  6  Leigh,  576 ;  Carter  v.  Allan,  21  Grat.  241. 

V  If  a  bona  fide  purchaser  has  the  conveyance  made  to  another  in  trust  for  him,  the 
defrauded  cestui  que  trust  is  as  remediless  as  in  the  case  where  the  purchaser  takes  the 
title  in  his  own  name.  This  is  an  illn.stration  of  the  rule  that  an  innocent  purchaser  ia 
protected  if  he  has  either  the  title  or  the  best  right  to  call  for  it.  Wilks  v.  Bodding- 
ton,  2  Vem.  599  ;  Willoughby  v.  Willoughby,  1  T.  R.  763  ;  Kenicott  v.  Supervisors,  16 
Wall.  452;  New  Banking  Co.  v.  Montgomery,  95  U.  S.  16  ;  Willis  v.  Henderson,  5  111. 
13;  Stokes  v.  Riley,  121  111.  166  ;  Peoria  Co.  v.  Thompson,  103  111.  187. 

3  Purchase  with  Notice  from  a  Purchaser  for  Value  without  Notice. — 
A  purchaser  with  notice  from  a  purchaser  for  value  without  notice  acquires  the  rights 
of  the  latter.     Harrison  v.  Forth,  Prec.  Ch.  51 ;  Salsbury  v.  Bagott,  2  Swanst.  608; 


SECT,  l]  note.  287 

Ferrars  v.  Cheney,  2  VetD.  383  ;  Brandlyn  v.  Ord,  1  Atk.  571  ;  Lowther  v.  Carlton,  2 
Atk.  242  ;  Mertius  v.  Jolliffe,  Amb.  313  ;  Sweet  v.  Southcote,  2  Bro.  C.  C.  66  ;  McQueen 
V.  Farquhar,  11  Ves.  467,  478;  Kettlewell  v.  Watson,  21  Ch.  D.  685;  Alexander  v. 
Pendleton,  8  Cranch,  462  ;  Myers  v.  Peek,  2  Ala.  648 ;  Wilkinson  v.  Solomon,  83  Ala. 
438;  Scott  v.  Orbison,  21  Ark.  202;  F'argason  v.  Edriugton,  49  Ark.  207;  Doyle  v. 
Wade,  23  Fla.  90 ;  Truluck  v.  Peoples,  3  Ga.  446 ;  Chance  v.  McWhorter,  26  Ga.  315  ; 
Johns  V.  Sewell,  33  Ind.  1  ;  McShirley  v.  Birt,  44  Ind.  382 ;  Evans  v.  Nealis,  69  Ind. 
148;  Chambers  v.  Hubbard,  40  Iowa,  432;  East  v.  Pugh,  71  Iowa,  162;  Moore  v. 
Dodd,  1  A.  K.  Marsh.  140;  Pierce  v.  Faunce,  47  Me.  507;  Hill  v.  McNichol,  76  Me. 
314;  Boyuton  v.  Bees,  8  Pick.  329;  Godfroy  y.  Disbrow,  Walk.  (Mich.)  260;  Shotwell 
V.  Harrison,  22  Mich.  410 ;  Lusk  v.  McNamer,  24  Miss.  58  ;  Price  v.  Martin,  46  Miss. 
489  ;  Harrington  v.  Allen,  48  Miss.  492  ;  Halsa  v.  Halsa,  8  Mo.  308 ;  Leman  i;.  Pou- 
penez,  35  Mo.  91  ;  Fuukhouser  v.  Lay,  78  Mo.  458  ;  Anderson  v.  McPike,  86  Mo.  293  ; 
Craig  V.  Zimmerman,  87  Mo.  473  ;  Martin  v.  Kixon,  92  Mo.  26 ;  Snowden  v.  Tyler,  21 
Neb.  199;  Bell  v.  Twilight,  18  N.  H.  159;  Kutgers  v.  Kiugsland,  3  Halst.  Ch.  178, 
658;  Holmes  v.  Stout,  3  Green,  Ch.  492;  2  Stock.  419,  s.  c. ;  Koll  v.  Rea,  50  N.  J, 
264;  Bumpus  ;;.  Platner,  1  Johns.  Ch.  213;  Jackson  v.  McChesney,  7  Cow.  360; 
Griffith  V.  Griffith,  9  Paige,  315  ;  Webster  v.  Van  Steenbergh,  46  Barb.  211 ;  Wood  v.  ' 
Chapin,  13  N.  Y.  509  ;  Taylor  v.  Kelly,  3  Jones,  Eq.  240  ;  Card  v.  Patterson,  5  Ohio  St. 
319;  Bracken  v.  Miller,  4  AVatts  &'s.  102;  Filby  i'.  Miller,  25  Pa.  264;  Church  v. 
Ruland,  64  Pa.  432  (semble) ;  Ashton's  App.,  73  Pa.  153  ;  City  Council  x\  Paige,  Speers, 
Eq.  159  ;  Lacy  v.  Wilson,  4  Munf.  313  ;  Curtis  v.  Lunn,  6  Munf.  42;  Montgomery  v. 
Rose,  1  Pat.  &  H.  5 ;  Pringle  v.  Dunn,  37  Wis.  449.  See  to  the  same  effect  Chalmers 
V.  Lanion,  1  Ames,  Cases  on  Bills  and  Notes,  691,  and  n.  3. 

y  But  one  who,  in  violation  of  his  duty  to  the  cestui  que  trust,  has  sold  the  trust 
property  cannot,  by  reacijuiring  the  property  from  a  purchaser  for  value  without  no- 
tice, succeed  to  the  latter's  rights.  Bovy  v.  Smith,  2  Ch.  Ca.  124,  126;  1  Veni.  60, 
8.  c. ;  Kennedy  ?•.  Daly,  1  Sch.  &  Lef.  379 ;  Re  Stapleford  Co.,  14  Ch.  D.  432,  445 
(semble);  Iluling  v.  Abbott,  86  Cal.  423  ;  Johnson  v.  Gibson,  116  111.  294;  Trentman 
V.  Eldridgc,  98  Ind.  525,  528  ;  Bailey  i-.  Binney,  61  Me.  361  ;  Frost  v.  Frost,  63  Me. 
399;  Allison  i'.  Ilagan,  12  Nev.  38  ;  Brophy  Co.  v.  Brophy  Co.,  15  Nev.  101  ;  Scliutt  v. 
Large,  6  Barb.  373;  Clark  v.  McNeal,  n3"N.  Y.  287;  Church  v.  Ruliind,  64  Pa.  432; 
Arm.strong  v.  Campbell,  3  Yerg.  201  ;  Troy  Bank  v.  Wilcox,  24  Wis.  671 ;  Ely  v.  Wil- 
cox, 26  Wis.  91  ;  1  Ames,  Cases  on  Bills  and  Notes,  691,  692,  n.  3. 

But  an  innocent  grantee  of  a  fraudulent  grantor  is  guilty  of  no  wrong  in  parting 
witli  tlie  proj)erty  if  he  is  still  ignorant  of  the  equity  of  the  defrauded  person.  Bone- 
steel  V.  B(jiio,«teel,  30  Wis.  516.  He  is  l)ound,  it  is  true,  to  account  to  the  defrauded 
person  for  so  nmch  as,  but  no  more  tlian,  he  has  received  (Robes  v.  Bent,  Moo.  552),  in 
exchange  for  tlie  property.  Hut,  on  the  other  hand,  if  he  reacquires  the  property  from 
an  innocent  ])urchaser  for  value,  he  may  keep  it.  M.ast  i'.  Henry,  65  Iowa,  l',).'?.  /6/  '/>^  3 Cry 
vT  No  I'.vv.MKNT  oi'  PiRciiASK-MoNKv  nicionE  NoTicK.  —  A  i)urcliascr  of  the  legal 
title  is  not  protected  from  a  prior  equity  if  he  receives  notice  of  it  at  any  time  before 
payment  of  the  pnrcliasf>-nir)ncy.  Jf)nes  \\  Stanley,  2  Eq.  Ab.  685,  pi.  9  ;  Tourvillo  v. 
Naish,  .'J  r.  Wins.  307  ;  Harri.son  r.  Southcote,  1  Atk.  538;  Fitzgerald  v.  Bent,  2  Atk. 
397  ;  Story  i;.  Windsor,  2  Atk.  6.30  ;  Hardringhani  v.  Nicliolls,  3  Atk.  304  ;  Mnundrell 
V.  Manndrell,  U)  Ves.  246,  271  ;  Tnylor  i,-.  Baker,  5  Price,  306  ;  'Tildeslcy  v.  Lodge,  3 
8m.  &.  G,  543  ;  Molony  v.  Kernan,  2  Dr.  &  W.  31  ;  Wormley  v.  Wornilcy,  8  Wlie.at. 
449;  Villa  y.  Rodriguez,  12  W.all.  323,33ft;  Wood  v.  Mann,  1  Sumn.  .506;  Dufphey 
V.  Frenaye,  5  St.  &  Port.  215  ;  Wells  v.  Morrow.  3ft  Ala.  125  ;  Buford  v.  McCormick, 
57  Ala.  42ft;  Duncan  v.  Johnson,  13  Ark.  190;  Kversdon  v.  Maydow,  65  Cal.  163 
(semU/i)  ;  Brown  v.  Welch,  18  111.  343;  Keys  r.  Test,  .33  111.  316;  ]5:ildwin  ?■.  Sager, 
70  111.  503  ;  Ro.soman  >•.  Miller,  84  111.  297  ;  Slnttery  v.  Hafferty,  93  111.  277  ,  Burgett 
V  T'axton,  99  111.  2ftR  ;  Gallion  »>.  Mcr'.iKlin,  I  Blackf.  91  ;  Parkinson  r.  Ilann.a,  7 
Blnckf.  400;  Anderson  v.  Hubble,  03  Ind.  570  (.irmlilr)  ;  Norton  v.  Williams,  9  Iowa, 
52ft,  .532  ;  Kitteridgo  v.  fMiapm.in,  36  low.i,  34ft  ;  Dodson  i;.  Cooper,  37  Kiia.  346  ; 
Moxlcy  J'.  Haskin,  39  Ka«.  6.53  ;  Simmn  v.  Richard.>«on,  2  Litt.  274  ;  Nantz  r.  McPher- 
Bon,  7  Mon.  597;  Hardin  v.  Harrington,  11  Bush,  367;  Thomas  v.  Grah.im,  Walk. 


V- 


283  NOTE.  [chap,  iil 

Ch.  117;  Warner  r.  Whittaker,  6  Mich.  133;  Blanchard  v.  Tyler,  12  Mich.  339; 
Palmer  r.  Williams,  24  Mich.  328;  Kohl  v.  Lyiin,  34  Mich.  360;  Minor  r.  Wil- 
louijhtn',  3  Minn.  225  ;  Marsh  v.  Armstrong,  20  Minu.  81  ;  Servia  v.  Beatty,  32  Miss. 
52  ;  Kilcrease  v.  Lum,  36  Miss  569 ;  Halsa  c.  Halsa,  8  Mo.  308  ;  Digby  i;.  Jones,  67  Mo. 
104  ;  Arnliolt  r.  Hartwig,  73  Mo.  485 ;  Young  v.  Kellar,  94  Mo.  581  ;  Clark  v.  Wal- 
dron,  39  Mo.  Ap.  21  ;  Patten  v.  Moore,  32  N.  H.  382  ;  Baldwin  v.  Johnson,  Saxt.  441  ; 
Losey  c.  Simpson,  3  Stockt.  246 ;  Camj)bell  v.  Campbell,  3  Stockt.  268 ;  Ilaughwout  v. 
Murphy,  21  N.  J.  Eq.  118  ;  Dean  i'.  Anderson,  34  N.  J.  Eq.  49G  ;  Keyser  v.  Angle,  40 
■V^  N.  J.  Eq.  481    (semble);    Frost  v.  Beekman,  1  Johns.  Ch.  288;   Murray  v.  Finster, 

2  Johns.  Ch.  155;  Jewett  v.  Palmer,  7  Johns.  Ch.  65;  Farmers'  Co.  r.  Maltby,  8 
Paige,  361  ;  Warner  i--.  Winslow,  1  Sandf.  Ch.  430;  Christie  i^.  Bishop,  1  Barb.  Ch. 
105 ;  Harris  v.  Norton,  16  Barb.  264 ;  Pickett  v.  Barron,  29  Barb.  505 ;  Penfield  v. 
Dunbar,  64  Barb.  239 ;  Spicer  r.  Waters,  65  Barb.  227  ;  Genet  v.  Davenport,  66  Barb. 
412  ;  Howlett  v.  Thompson,  1  Ired.  Eq.  369 ;  Richards  i*.  Snyder,  11  Oreg.  501  (semble) ; 
Wood  r.  Ray  burn,  18  Oreg.  3  ;  Yotist  v.  Martin,  3  S.  &  R.  423 ;  Union  Co.  v.  Young, 
I  Whart.  410;  Beck  v.  Uhrich,  13  Pa.  639  ;  Juvenal  v.  Jackson,  14  Pa.  519  ;  Snelgrove 
V.  Snelgrove,  4  Dess.  274,  287 ;  McBee  v.  Loftis,  1  Strob.  Eq.  90 ;  Bush  v.  Bush,  3 
Strob.  Eq.  131 ;  Pillow  v.  Shannon,  3  Yerg.  508  ;  Beaty  v.  Whitaker,  23  Texas,  526  ; 
Fraim  v.  Frederick,  32  Texas,  294 ;  Hutchins  i-.  Chapman,  37  Texas,  612 ;  Morton  v. 
Lowell,  56  By.  693  ;  Abell  v.  Howe,  43  Vt.  403 ;  Doswell  v.  Buchanan,  3  Leigh, 
365  ;  Rorer  Co.  v.  Trout,  83  Va.  397  ;  Everts  v.  Agnes,  4  Wis.  343. 

But  see,  contra,  Parker  v.  Crittenden,  37  Conn.  148.  ^^^vtvuW  v-  ^  Cryi-^ 
C  P.vRTiAL  Payment  before  Notice.  — A  purchaser  of  the  legal  title  who  has  been 
notified  of  a  trust  or  other  equity  to  which  it  was  subject,  after  a  partial  payment  can- 
not be  compelled  to  surrender  the  legal  title  except  upon  receiving  reimbursement  for 
what  he  has  paid  before  notice.  Florence  Co.  i*.  Zeigler,  58  Ala  221  ;  Craft  v.  Russell, 
67  Ala.  9;  Marchbauks  v.  Banks,  44  Ark.  48;  Baldwin  v.  Sager,  70  111.  503,  507  , 
Lewis  r.  Phillips,  17  Ind.  108  (semble);  Rhodes  v.  Green,  36  Ind.  7  ;  Burton  v.  Reagan 
75  Ind.  77  (but  see  Dugan  v.  Vattier,  3  Blatchf.  245) ;  Kitteridge  v.  Chapman,  36  Iowa, 
348 ;  Bush  v.  Collins,  35  Kas.  535  ;  De  Ford  v.  Orvis,  42  Kas.  302 ;  Crockett  v.  Phin- 
ney,  33  Minn.  157  (semble) ;  Servis  v.  Beatty,  32  Miss.  52  (semble) ;  Paul  v.  Fulton,  25 
Mo.  156,  163;  Digby  v.  Jones,  67  Mo.  104  (semble);  Dougherty  v.  Cooper,  77  Mo.  528," 
Hanghwout  r.  Murphy,  22  N.  J.  Eq.,  531  (semble) ;  Sargent  y.  Eureka  Co.,  46  Hun, 
19  (compare  Warren' r.  Wilder,  114  N.  Y.  209);  Youst  v.  Martin,  3  S.  &  R.  423 
(semUe) ;  Union  Co.  v.  Young,  1  Whart.  410  (semble)  ;  Juvenal  v.  Jackson,  14  Pa.  519 
(semble) ;  Beck  i:  Uhrich,  13  Pa.  636,  16  Pa.  499  ;  Everts  v.  Agnes,  4  Wis.  343  (semble). 
See  also,  where  the  prior  equity  was  a  lien,  Tourville  v.  Naish,  3  P.  Wms.  307  ;  Rajme  v. 
Baker,  1  Giff.  241  ;  Baldwin  "i*.  Sayer,  70  111.  503  ;  Farmers'  Co.  i;.  Maltby,  8  Paige, 
361  ;  Mitchell  v.  Dawson,  23  W.  Va.  86. 

But  see  contra,  Wormley  v.  Wormley,  8  Wheat.  421,  456 ;  Doswell  v.  Buchanan,  3 
Leigh,  365. 

/  There  is  authority,  indeed,  for  the  position  that  a  purchaser  under  such  circum- 
stances may  retain  the  property  purchased  subject  to  a  lien  for  the  amount  of  the  un- 
paid purchase-money  in  favor  of  the  equitable  incumbrancer.  Flagg  v.  Mann,  2  Sumn. 
566  (see  al.<o  Wood  v.  Mann,  1  Sumn.  506) ;  Dowell  r.  Applegate,  7  Fed.  Rep.  881  ; 
Florence  Co.  v.  Zeigler,  58  Ala.  221,  244;  Green  i-.  Green,  41  Kas.  472;  Hardin  u.  Har- 
rington, 11  Bush,  367 ;  Haughwout  v.  Murphy,  21  N.  J.  Eq.  118.  See  also.  Ex  parte 
Golding,  13  Ch.  Div.  628 ;  Kemp  v.  Falk,  7  App.  Cas.  573,  14  Ch.  Div.  446. 
^  Notice  before  Convetawce  of  the  Legal  Title.  —  A  purchaser  is  not  pro- 
tected from  a  prior  equity  if  he  receives  notice  of  it  at  any  time  before  the  conveyance 
is  executed,  even  though  he  may  have  paid  the  purchase-money  before  notice.  Wigg 
V.  Wigg,  1  Atk.  384  ;  Mackreth  i'.  Sjrmmons,  15  Ves.  335;  Whitworth  r.  Gangain,  3 
Hare,  416,  428  ;  Boone  v.  Chiles,  10  Pet  177,  212  (semble)  ;  Moore  v.  Clay,  7  Ala.  742 
(semble) ;  Fash  r.  Ravesies,  32  Ala.  451 ;  Wells  v.  Morrow,  38  Ala.  125,  128 ;  Louis- 
ville Co.  i;.  Boykin,  76  Ala  560 ;  Duncan  v.  .Johnson,  13  Ark.  190,  192  ;  Gallion  v. 
McCaslin,  1  Blackf.  91 ;  Dugan  v.  Vattier,  3  Blackf.  246,  247;  Lewis  v.  Phillips,  17 
Ind.  108  (semble) ;  Rhodes  v.  Green,  36  Ind.  7  (semble);  Simma  v.  Richardson,  2  Litt 


SECT.  I.]  SAUNDERS   V.   DEHEW.  289 

274;  Xantz  u.  McPherson,  7  Mon.  597,  599;  Carrens  v.  Hart,  Hardin,  37;  Corn  v. 
Sims,  3  Met.  (Ky.)  391 ;  Wing  v.  McDowell,  Walk.  Ch.  175,  183  ;  Kilcrease  r.  Lum, 
36  Miss.  569  {semble) ;  Phillips  v.  Morrison,  24  N.  J.  Eq.  195 ;  Dean  v.  Anderson,  34 
N.  J.  Eq.  496  {semble) ;  Frost  r.  Beekinan,  1  Johns.  Ch.  288,  301  (semble) ;  Grimstone 
V.  Carter,  3  Paige,  421,  436  ;  Peabody  v.  Fenton,  3  Barb.  Ch.  451,  464-5  ;  Anketel  v. 
Converse,  17  Ohio  St.  11  (semble) ;  Bush  v.  Bush,  3  Strob.  Eq.  131  (semble)  ;  Pillow  v. 
Shannon,  3  Yerg.  508  (semble) ;  Blair  v.  Owles,  1  Munf.  38  (semble) ;  Hoover  v.  Don- 
ally,  3  Hen.  &  M.  316  ;  Mutual  Society  v.  Stone,  3  Leigh,  218  (semble). 

But  see  contra,  Wheaton  v.  Dyer,  15  Conn.  307,  311  (semble) ;  Paul  v.  Fulton,  25  Mo. 
156,  163  (semble) ;  Gibler  v.  Trimble,  14  Ohio,  323 ;  Youst  v.  Martin,  3  S.  &  R.  423. 
^  Similarly,  if  a  bill  negotiable  only  by  indorsement  is  transferred  by  deliverj'  merely 
to  a  purchaser  for  value  without  notice,  but  is  not  indorsed  to  him  until  after  he  has 
been  notified  of  an  equity  attaching  to  the  bill,  the  indorsee  will  acquire  only  the  rights 
of  his  transferor.  Esdaile  v.  Lanauze,  1  Y.  &  C.  394;  Whistler  v.  Forster,  14  C  B. 
N.  s.  248;  Savage  v.  King,  17  Me.  301  ;  Haskell  v.  Mitchell,  53  Me.  468;  Allum  v. 
Perry,  68  Me.  232;  Lancaster  Bank  v.  Taylor,  100  Mass.  18;  Gibson  v.  Miller,  29 
Mich.  355  (semble) ;  Dowell  v.  Brown,  21  Miss.  43;  Southard  v.  Porter,  43  N.  H.  379; 
Clark  V.  Whitaker,  50  N.  H.  474  ;  Gilbert  v.  Sharp,  2  Lang.  412 ;  Goshen  Bank  v. 
Bingham,  118  N.  Y.  349;  Beard  v.  Dedolph,  29  Wis.  136  (semble). 

See  contra,  Baggarly  v.  Gaither,  2  Jones,  Eq.  (N.  C.)  80. —  Ed.  ,    ^  \'  ]f  /*  /    ^ 


SAUNDERS   V.   DEHEW. 

In  Chancery,  before  Sir  John  Trevor,  Sir  William  Rawlinson, 
AND  Sir  George  Hutchiks,  Commissioners,  June  3,  1692. 

[Reported  in  2  Vernon,  271.^] 

Anne  Bayly,  being  possessed  of  a  term  for  years,  makes  a  volun- 
tary settlement  thereof,  in  trust  for  herself  for  life,  remainder  to  her 
daughter  Isabella  Barnes  for  life,  remainder  to  the  children  of  Isabella, 
by  Mr.  Barnes,  her  then  husband.  Isabella,  for  £200,  mortgages  the 
lands  in  question  to  the  plaintiff,  who  pretends  he  had  no  notice  of  the 
settlement ;  Isabella,  in  the  mortgage  deed,  being  called  the  daughter 
and  heir  of  John  Ba^'ley.  The  plaintiff  hearing  of  it  gets  an  assign- 
ment of  the  term  from  the  trustees. 

/Vr  Cur.  Though  a  purchaser  may  buy  in  an  incumbrance,  or  lay 
hold  on  any  plank  to  protect  himself,  yet  he  shall  not  protect  himself 
by  the  taking  a  conveyance  from  a  trustee  after  he  had  notice  of  the 
tru.st,  for  by  taking  a  conveyance  with  notice  of  the  trust,  he  himself 
becomes  the  trustee,  and  must  not,  to  get  a  plank  to  save  himself,  be 
guilty  of  a  breach  of  trust.  And  the  plaintiff's  bill  being  l)rought 
against  the  children  of  Isabella  to  foreclose  them,  the  court  refused 
80  to  do,  saying,  if  he  might  be  suffered  to  protect  himself,  by  thus 
getting  in  the  legal  estate,  they  would  not  carry  it  on  by  a  decree  la 
equity  to  foreclose.' 

«  Frcem.  C.  C.  123,  8.  c  —  Ed. 

2  Allen  V.  Knight,  5  Hare,  272  ;  1 1  Jnr.  257,  s.  c,  on  appeal ;  Carter  v.  Carter,  3  K. 
&  J.  617  (semble);  Prosscr  v.  Rico,  28  Beav.  68,  74  (semble);  Sharpies  r.  Adama,  32 

19 


290  SAUNDERS  V.   DEIIEW.  [CIIAP.  IIL 

Beav.  213,  216  (semble) ;  Baillie  v  McKewan,  35  Beav.  177;  riloliar  v.  Rawlins,  L.  R. 
7  Ch.  Ap  259  (sembli) ;  Muiuford  i'.  Stohwiisser,  L.  R.  18  E(i.  55G  Accord. 

Campbell  v.  Brackenridge,  8  Blackf.  471  ;  Carroll  v.  Johnstou,  2  Joues  (N.  C.)  Eq. 
120,  contra. 

In  Carter  v.  Carter,  supra,  Sir  W.  Page  Wood,  V.  C,  said,  p.  639  :  "  Sir  John 
Leacli  laid  it  dowu  (and  I  apprehend  that  lie  did  uot  exceed  the  authorities  referred 
to  iu  that  case  when  he  so  laid  it  dowu)  that  a  purchaser  from  a  person  in  pos- 
session purcliasing  witliout  uotice  of  auy  prior  charge  or  trust,  and  obtaining  a 
couveyauce  of  the  legal  estate  from  tiie  trustee  of  a  satisfied  term  or  the  mort- 
gagee of  a  satisfied  mortgage,  will  always  be  protected  iu  this  court  against  a 
prior  incumbrancer  or  cestui  que  trust,  subject  only  to  one  observation  wliich  has 
considerable  bearing  on  the  case  before  me,  —  an  observation  to  be  found  in  Lord 
Eldou's  remarlvs  iu  Mauudrell  u.  Mauudrell,  10  Ves  246,  and  repeated  by  him  in  Ex 
parte  Knott,  1 1  Ves.  609,  and  several  other  cases,  —  which  is  this,  that  the  party  so 
conveying  the  legal  estate  must  uot  have  notice  of  an  express  prior  trust  or  incum- 
brance. On  looking  through  the  authorities,  you  find  that,  wiiore  a  conveyance  is  to 
be  obtained  from  a  mortgagee  who  has  become  a  constructive  trustee  by  the  mortgage 
being  satisfied,  or  from  a  trustee  of  a  term  to  attend  on  the  inheritance,  the  question 
who  is  or  is  not  entitled  to  the  equity  of  redemption  or  to  the  inheritance  may  be  a 
question  that  may  affect  him  as  to  the  conveyance  he  may  make ;  but,  at  the  same 
time,  there  is  no  direct  notice  afforded  by  the  document  iu  tlie  hands  of  the  trustee  or 
mortgagee  of  any  ulterior  trust  beyond  this,  that  he  is  to  liold  for  the  persons  entitled. 
In  Mauudrell  v.  Maundrell,  and  again  in  Ex  parte  Knott,  Lord  Eldon  discusses  the 
whole  doctrine,  to  which,  he  says,  he  has  considerable  aversion,  and  searches  with 
great  jealousy  into  the  cases;  and  he  says  he  has  not  been  able  to  find  a  case  wiiere  a 
person  being  a  mortgagee  without  notice  of  a  previous  incumbrance  has  been  held  to 
be  entitled  to  obtain  from  the  trustee  of  an  outstanding  legal  estate  the  conveyance  of 
that  estate,  when  the  trustee  himself  had  notice  of  the  intervening  incumbrance  And 
I  must  say,  having  now  examined  a  great  number  of  authorities,  I  have  not  been  able 
to  find  a  case  of  that  description.  I  speak  of  cases  where  it  is  a  dry  trust  —  not  tiie  case 
of  a  mortgagee  whose  mortgage  is  unsatisfied,  but  the  dry  trust  of  a  satisfied  mortgage 
or  a  satisfied  term  of  years  attending  on  tlie  iulieritance,  where  there  is  nothing  but 
the  trust  remaining  to  be  performed.  There  are  several  cases  where  the  purciiaser  has 
been  allowed  at  the  last  moment,  after  payment  in  full  and  up  to  decree,  to  get  in  an 
earlier  mortgage  •,  and  there  is  no  breach  of  duty  in  a  person  assigning  his  mortgage  to 
anybody  who  pays  him.  Any  purchaser  is  entitled  to  hold  that  wiiicii,  without  breach 
of  duty,  has  been  conveyed  to  him.  But  the  case  put  by  Lord  Eldon  is  this ;  Could 
the  purchaser  insist  on  any  benefit  to  be  derived  from  that  which  would  be  a  breach  of 
duty  or  breach  of  trust  in  the  trustee  "^  In  Ex  parte  Knott  he  says,  '  Surely,  if  the 
purchaser  would  be  safe,'  —  if  the  purchaser  would  be  entitled  to  hold  the  estate  dis- 
charged of  the  trust,  — '  the  trustee  ought  to  be  so.'  The  trustee  sliould  be  pro- 
tected in  the  act  which  he  has  committed.  11  Ves,  614.  Whether  that  doctrine  will 
nltimately  be  held,  it  is  not  perhaps  important  for  me,  at  present,  to  say ;  but  I  must 
say,  on  looking  through  a  vast  number  of  volumes  of  the  earlier  and  later  authorities, 
I  have  not  found  any  such  case  as  Lord  Eldon  has  put,  —  I  have  not  found  any  case  in 
which  a  i<urchaser,  obtaining  a  conveyance  of  a  mere  dry  trust  estate  from  a  trustee  of 
a  satisfied  term,  or  from  a  mortgagee  whose  mortgage  has  been  satisfied,  such  trustee 
or  mortgagee  having  at  the  time  when  he  made  the  conveyance  notice  of  an  inter- 
vening charge  or  trust,  has  been  held  entitled  to  protect  himself  from  such  charge  or 
trust  by  means  of  the  legal  estate  which  he  has  so  obtained." 

In  Pilcher  v.  Rawlins,  supra.  Sir  W.  M.  James,  L.  J.,  said,  p.  268 :  "  I  do  not  mean 
in  the  few  observations  which  I  am  about  to  make,  to  refer  to  a  class  of  ca.ses  which 
appear  to  me  entirely  distinct  in  principle  from  the  case  now  before  us.  I  mean  that 
class  of  cases  in  which  a  person  finding  himself  in  possession  under  a  defective  title 
has  cast  about  to  cure  that  defect  by  procuring  some  one  else  to  convey  an  outstand- 
ing legal  estate.  No  doubt  it  has  been  held  in  this  court  that  a  man  under  those  cir- 
cumstances may  get  in  a  mortgage  and  tack  his  defective  title  to  the  estate  of  that 
mortgagee.     He  has  also  been  allowed  to  get  in  an  outstanding  legal  estate  from  a 


SECT.  I.]  SAUXDERS  V.    DEHEW.  291 

person  who,  being  a  trustee  for  the  real  owner,  is  not  a  trustee  for  the  person  seeking 
the  conveyance.  But  those  cases  where  the  person  seeking  the  conveyance  knew  the 
fact  that  the  trustee  was  trustee  for  somebody  else,  and  could  not  convey  without  a 
breach  of  trust,  whilst  the  ttusteAwas  left  in  ignorance,  —  those  cases,  I  say,  involve 
a  principle  which  1  have  never  been  able  to  understand." 

In  Mumfurd  v.  Stohwasser,  supra,  Sir  G  Jessel,  M.  R.,  said,  p.  562  ;  "There  is  a 
second  point  raised  on  which  I  have  a  word  to  say,  although  I  think  it  does  not  arise 
in  this  case.  I  mean  the  question,  what  the  effect  would  be  if  the  defendant  had  no 
notice  of  the  trust.  I  say  1  do  not  think  it  is  necessary  to  decide  it,  because  I  hold 
that  he  had  notice.  As  to  this  second  point,  there  has  been  a  great  conflict  of  opinion ; 
my  own  opinion  is,  that  even  without  notice  he  could  not  have  acquired  title  ;  but,  as 
I  said  before,  there  is  probably  no  point  on  which  there  has  been  greater  difference 
of  opinion  I  entirely  subscribe  to  what  Lord  Justice  James  said,  in  the  case  of 
Pilcher  v  Rawlins,  Law  Rep.  7  Ch.  259,  as  to  the  old  cases,  in  which  a  trustee  of  a 
term  to  attend  the  inheritance  was  allowed  to  assign  in  such  a  manner  as  to  give 
preference,  being  contrary  to  all  principle.  Those  were  really  cases  of  constructive 
notice,  because  the  person  taking  the  assignment  must  have  known  that  the  person 
assigning  was  a  trustee  for  some  one  What  Lord  Justice  James  says  is  tliis.  Law 
Rep.  7  Ch  268  '  Those  cases  where  the  person  seeking  the  conveyance  knew  the  fact 
that  the  trustee  was  trustee  for  somebody  else,  and  could  not  convey  without  a  breach 
of  trust,  whilst  the  trustee  was  left  in  ignorance,  — those  cases,  I  say,  involve  a  prin- 
ciple which  I  have  never  been  able  to  understand.'  The  case  on  which  I  have  just 
expressed  my  opinion  is  the  converse  one  to  that  put  by  the  Lord  Justice.  I  do  not 
mean  the  actual  case  now  before  me,  because. I  hold  that  the  mortgagee  had  notice; 
but  supposing  that  I  did  not  so  hold,  this  would  be  the  case  of  a  trustee  knowing  that 
he  was  a  trustee  assigning  over  the  legal  estate  to  a  person  who  did  not  know  he  was 
a  trustee,  that  person  having  previously  acquired  an  equitable  interest ;  and  I  sliould 
hold,  if  that  neat  point  came  for  decision,  wliicli  I  think  it  does  not  in  tliis  case,  that 
the  second  equitable  incumbrancer  or  the  purchaser  of  the  equity  did  not  thereby 
gain  any  priority ;  in  other  words,  that  a  person  knowing  that  he  is  a  trustee  cannot, 
without  receiving  value  at  the  time,  by  committing  a  breach  of  trust,  deprive  his 
own  cestui  (/ut  trust  of  his  rights.  Here,  however,  the  point  I  have  to  decide  is 
whether  a  person  with  notice  at  the  time  he  takes  the  legal  estate  that  the  person 
assigning  it  is  a  trustee  of  the  estate  can  get  priority.  I  think  that  has  been  long 
since  settled." 

See  to  the  same  effect,  Maxfield  v.  Burton,  L.  R  17  Eq.  15,  19  ;  Ilarpham  v.  Shack- 
lock,  19  Ch.  Div.  207.     Compare  Garnham  l'.  Skipper,  34  W.  R.  136,  per  IS'orth,  J. 

If  iho  holder  of  the  legal  title  tran.'^fers  it  to  the  second  equitable  claimant,  who  is 
still  ignorant  of  the  prior  ecjuity,  when  he  ought  to  convey  to  the  first  ecjuitable 
claimant,  the  actual  transferee,  having  got  the  title,  may  keep  it.  Thorndike  v. 
Hunt,  3  I)e  G.  &  J.  563;  Cooke  v.  Wilton,  29  Beav.  100  ;  Ratdiffe  v.  Barnard,  6  Ch. 
652  ;  Leask  v.  Scott,  2  Q.  B.  Div.  376  (dissenting  from  Roger  v.  Comptoir  D'Es- 
compte,  L  R  2  1'  C.  393)  ;  London  Co.  v.  London  Bank,  21  (^.  B.  Div.  535;  Taylor 
V.  Blacklock,  32  Ch.  D.  560;  Colonial  Bank  r  llepworth,  36  Ch.  D.  36;  Miller  v. 
Boykin,  70  Ala.  469;  People  v.  Swift  (Cal.,  1H92)  .'H  l';ic.  R.  16;  Gibson  v.  Lenhart, 
101  I'a  522.     See  also  1   Harvard   J>a\v  Hev.  15-16  ,  4  Harvard  Law  Rev.  309,  n.  3. 

But  see  contra.  Sharpies  v.  Adams,  32  Beav.  213.  216  ;  Mumford  v  Stohwasser, 
tupru  ,  .Maxfield  v.  Burton,  17  E<i.  15,  17,  per  Jessel,  M.  R. ;  Garnli.am  i'.  Skijuier, 
34  W.  R  136,  per  North,  J.;  Barnard  v.  Can)pl)o]l,  55  N.  Y.  456,  58  N.  Y.  73  (over- 
ruling Fenby  i;.  Pritchard,  2  Sandf.  151);  Muller  v.  I'oudir,  55  N.  Y.  325  (semble).-' 
Ed. 


292  BATES  V.  JOHNSON.  [chap.  IIL 


BATES   V.  JOHNSON. 

In  Chancery,  before  Sir  W.  Page  Wood,  V.  C,  April  20,  27; 

May  30,  1859. 

[Reported  in  Johnson,  304.) 

Vice-Chancellor  Sir  W.  Page  Wood.*  The  facts  upon  which  the 
question  in  this  case  arises  may  be  very  shortly  stated.  In  1823,  pre- 
viously to  his  marriage,  Thomas  P^Uis  Bates,  the  father  of  the  plain- 
tiffs, made  a  settlement,  by  which  he  agreed  to  convey  certaui  real 
property,  of  which  he  was  seised  in  fee-simple,  to  trustees,  upon  trust 
for  his  then  intended  wife,  during  her  life,  for  her  separate  use,  with 
remainder  for  the  survivor  of  them  for  life,  with  remainder  for  their 
children.  He  afterwards  suppressed  that  settlement,  and  in  fraud  of 
it  made  three  successive  mortgages  of  the  property,  —  the  first  to  one 
Brooke,  since  deceased,  the  second  to  the  defendant  Nash,  and  the 
third  to  the  defendant  Hooke,  all  of  which  are  now  vested  in  Hooke. 
And  the  short  question  is,  whether,  each  mortgagee  having  advanced 
his  money  without  notice  of  the  settlement,  the  third,  who  has  got  in 
the  legal  estate  since  the  institution  of  the  suit,  can  insist  upon  that 
legal  estate  against  the  plaintiffs,  who  had  filed  their  bill  to  redeem 
the  first  mortgage. 

The  plaintiffs  admit,  that,  as  against  the  first  mortgagee,  they  are 
unable  to  establish  any  priority,  he  having  advanced  his  money  and 
taken  his  security  without  notice  of  their  equity  ;  but  they  insist,  that, 
upon  redeeming  him,  they  will  be  entitled  to  the  estate  discharged  of 
the  subsequent  mortgages,  notwithstanding  the  legal  estate  has  been 
got  in  by  the  third  mortgagee  in  the  manner  I  have  described. 

The  plaintiffs,  of  course,  admit  the  long-established  doctrine,  that, 
where  there  are  three  successive  mortgagees,  the  third  taking  his 
security  without  notice  of  the  second  at  the  time  of  advancing  his 
money,  if  the  third  can  obtain,  even  after  bill  filed,  a  conveyance  of 
the  legal  estate  from  the  first,  he  can,  as  it  is  termed,  "  squeeze  out  " 
the  second,  although  at  the  time  of  obtaining  such  conveyance  he  had 
full  notice  of  the  existence  of  the  second  mortgage.  The  fact  of  his 
having  such  notice  at  the  time  of  his  getting  in  the  legal  estate  is  im- 
material, provided  he  had  no  such  notice  at  the  time  when  he  advanced 
his  money.  Whether  the  principle  is  satisfactory  or  not  is  not  the 
point,  but  it  is  now  settled  beyond  dispute  upon  the  authorities  ;  and 
the  result  is  (although  I  am  not  aware  that  such  a  case  has  actually 
occurred),  that,  if  a  second  and  a  third  mortgagee  are  both  equally  de- 
sirous of  redeeming  the  first,  the  first  mortgagee  has  it  in  his  power,  if 
he  be  so  minded,  to  give  the  preference  to  which  of  the  two  he  pleases, 

1  See  supra,  p.  70,  n.  1.  — Ed. 


SECT.  I.]  BATES   V.   JOHNSON.  293 

—  a  result  contrary  to  the  ordinary  doctrine  of  the  court.  In  every 
case,  down  to  Peacock  v.  Burt,  which  is  probably  one  of  the  most 
striking  of  the  kind,  it  has  been  held,  that,  when  once  a  subsequent 
incumbrancer,  who,  by  advancing  his  money,  without  notice  of  prior 
mesne  mcumbrances,  stands  in  an  equally  good  position  with  them  m 
every  respect,  except  as  regards  time,  gets  in  the  legal  estate,  he  has  a 
right  to  avail  himself  of  that  legal  estate  until  the  whole  of  his  incum- 
brance is  discharged. 

Peacock  v.  Burt  was  a  very  strong  case,  for  this  reason  :  There  the 
first  mortgagee  had  notice  of  the  second  mortgage  as  soon  as  it  was 
made ;  and,  with  that  notice  before  him,  he  made  further  advances  to 
the  mortgagor,  and  subsequently  joined  with  the  mortgagor  in  execut- 
ing a  transfer,  and  further  charge  on  the  estate,  in  favor  of  a  third 
mortgagee,  without  informing  him  of  the  intervening  incumbrance,  of 
which  notice  had  been  given  him  for  the  very  purpose  of  protecting  it 
from  being  so  defeated  :  yet  it  was  held,  that  the  third  mortgagee,  who 
had  thus  obtained  the  legal  estate,  was  entitled  to  hold  it  discharged 
from  the  intervening  incumbrance.^ 

But  the  plaintiffs  rely  on  the  covenant  on  the  part  of  the  settlor, 
that,  until  the  hereditaments  and  premises  shall  have  been  conveyed 
and  assured  pursuant  to  his  covenant,  all  and  every  the  hereditaments 
and  premises,  and  tlie  rents  and  profits  thereof,  shall  be  held,  paid,  ap- 
plied, and  disposed  of  upon  the  trust  mentioned  in  the  indenture  of 
settlement.  This,  they  say,  was  a  covenant  running  with  the  land, 
and  would  bind  the  first  mortgagee  when  once  he  had  notice.  It  was 
suggested,  tliat  possibly  it  miglit  bind  him  even  without  notice  as  a 
covenant  running  with  the  land,  so  as  to  give  a  right  of  action  at 
law  ;  but,  at  all  events,  it  was  argued,  that  it  would  bind  him  after 
he  had  received  notice  of  the  settlement,  and  would  be  equivalent,  in 
fact,  to  a  dechiration  of  trust,  and  ought  to  have  the  same  effect  as 
a  declaration  of  trust  inserted  in  his  mortgage,  and  binding  him, 
after  satisfying  his  own  debt,  to  liold  the  property  upon  the  trusts  of 
the  settlement ;  and  his  conscience  being  distinctly  and  clearly  affected 
by  the  trusts  of  the  settlement,  it  was  a  breach  of  trust,  as  the  plain- 
tiffs insi.sted,  in  him  to  convey  the  property  to  a  subsequent  mortgagee, 
instead  of  conveying  it  upon  the  trusts  by  which  he  himself  was  af- 
fected. 

'  Peacock  I'.  Burt,  4  L  J  n  8  Cli.  .3.3,  .seems  to  have  been  misunderstood  Tlio 
que.stionalile  doctrine  of  tacking  was  not  involved.  A.  mado  a  first  mortgage  to 
X  for  .£^,700,  lie  tlicn  mado  a  second  mortgage  to  Y  for  £2,000,  of  wliicli  X.  \va.s 
informed.  Finally  Z.  ailvanced  jCI 2,000,  paying XH, 700  toX  and  taking  an  as.xignment 
from  him,  and  paying  the  balance  to  A.  Z.  had  no  notice  of  Y.'b  mortgage.  Y.'s 
claim  was  jiosfponed  to  Z.'a  The  strongest  opponents  of  tJie  Knglisli  doctrine  of 
tacking  cannot  prf)perly  doubt  the  soundness  of  Pe.icock  r  ISurt.  Z.  advjinced  his 
money  in  good  faith  on  the  strength  of  the  legal  title  at  that  time  conveyed  to  liim. 
His  rights  were  the  same  as  they  would  have  been  if  X.  b.id  reconveyed  to  A. ,  and 
A.,  tiaving  regaine<l  the  legal  estate,  b,id  conveyed  to  Z.  to  secure  the  .£12,000.  Such 
was  the  case  iu  Carlisle  Co.  v.  Thompson,  28  Ch.  D.  398;  West  Loudon  Bank  v.  Ileli- 


294  BATES  V.   JOHNSON.  [CHAP.  III. 

After  carofiilly  roconsiilering  the  authorities  which  I  had  occasiou  to 
refer  to  in  Carter  v.  Carter,'  I  do  uot  see  that  there  can  be  any  doubt 
whatever  as  to  the  doctrine  established  by  the  authorities.  The  authori- 
ties, as  it  seems  to  me,  have  gone  to  this  extent  (although  I  am  still  of 
opinion  that  they  have  never  gone  further),  that  any  person  having  an 
unsatisfied  mortgage  or  charge  upon  real  property  is  at  liberty,  at  any 
time  before  decree,  to  convey  the  legal  estate  in  the  property,  in  re- 
spect of  his  unsatisfied  charge,  to  any  subsequent  incumbrancer,  who 
may  have  advanced  his  money  without  notice  of  any  intervening  or 
other  charge  or  incumbrance,  and  by  so  doing  may  give  to  that  other 
incumbrancer  a  right,  which  this  court  cannot  take  from  him,  to  insist 
upon  the  legal  estate,  which,  as  the  court  holds,  he  has  thus  properly 
acquired. 

In  the  case  of  a  satisfied  mortgage,  where  the  mortgagee  would  hold 
simply  upon  trust  for  the  original  mortgagor  or  those  claiming  under 
him,  or  in  the  case  of  a  trustee  of  a  satisfied  term,  —  which  are  the 
cases  put  by  Lord  Eldon  in  Maundrell  v.  MaundrelP  and  Ex  parte 
Knott, ^  —  I  do  not  find  any  authority  which  decides,  that,  where  no- 
tice has  once  been  fixed  upon  the  person  thus  holding  as  a  trustee  of  a 
drj'  legal  estate  for  the  benefit  of  the  parties  entitled,  he  is  at  liberty 
to  convey  that  estate  to  a  third  part3%  or  to  give  to  such  third  party  a 
security  which  could  only  be  acquired  through  the  medium  of  a  breach 
of  trust  on  his  part.  It  is  true,  that  I  do  not  find  any  authority  w'hiclx 
expressly  determines  the  contrary :  Saunders  v.  Dehew,  and  Allen  v. 
Knight,*  which  came  first  before  V.-C.  Wigram,  and  afterwards  before 
Lord  Cottenham,  have  detei'mined,  that,  wl)ere  th^-e  is  an  express 
declaration  of  trust,  the  trustee  cannot  convey  the  property  otherwise 
than  in  the  condition  in  which  he  holds  it,  namely,  fettered  with  the 
trusts  declared  by  the  deed.  But  those  were  cases  of  express  trust, 
and  therefore  distinguishable.  Upon  looking  through  all  the  authori- 
ties, I  adhere  to  the  observations  which  I  made  in  Carter  v.  Carter.^ 
I  have  not  been  able  to  find  any  case  such  as  Lord  Eldon  has  put,  and 
in  which  it  has  been  held  that  a  purchaser  obtaining  a  conveyance  of  a 
mere  dry  trust  estate,  whether  from  a  trustee  of  a  satisfied  term  or 
from  a  mortgagee  whose  mortgage  has  been  satisfied,  such  trustee  or 
mortgagee  having,  at  the  time  of  making  the  conveyance,  notice  of  an 
intervening  charge  or  trust,  the  purchaser  is  entitled  to  protect  himself 
from  such  charge  or  trust  by  means  of  the  legal  estate  which  he  has  so 
obtained.  And  it  appears  to  me  that  the  o])servation  of  Lord  Eldon  is 
very  strong,  that  if  the  purchaser  can  so  protect  himself,  then  the  trustee 
ought  to  be  indemnified  in  respect  of  his  having  made  the  conveyance.® 
In  other  words,  you  can  hardly  say  that  the  estate  is  acquired  by  a 

ance  Society,  29  Ch.  Div.  954.     See  further  Fourth  Society  v.  Williams,  14  C.  D.  140; 
Ilosking  V.  Smith,  13  App.  Cas.  582. — Ed. 

1  3  K.  &  .1.  C17,  640.  2  10  Ves.  246.  8  11  Ves.  614. 

♦  5  Hare,  272 ;  s.  c.  on  apfjeal,  16  L.  J.  n.  s.  Ch.  370. 

*  See  per  Lord  Eldon  in  Ex  parte  Knott,  11  Ves.  614. 


SECT.  I.]  BATES   V.   JOHNSON.  295 

conveyance  •uliich  is  a  breach  of  trust  on  the  pait  of  the  person  mak- 
ing it,  and  known  to  be  so  by  him  at  the  time  that  he  is  making  the 
conveyance. 

In  applying  the  law  to  the  facts  of  the  case  before  me,  all  I  find  is 
this  :  I  find  a  first  mortgagee,  who  advances  his  money,  and  takes  his 
security,  without  any  notice  whatever  of  the  trust.  AVhether  he  is 
affected  by  the  covenant  running  with  the  land  is  a  question,  which,  if 
it  be  necessary  to  determine  it  at  all,  must  be  determined  by  a  court  of 
law.  He  takes  his  security  without  any  notice  whatever,  either  upon 
the  face  of  his  mortgage  deed  or  otherwise,  of  va\y  trust.  There  is  no 
engagement  upon  his  part  to  perform  any  trust.  It  is  not  like  the  case 
put  in  argument,  on  behalf  of  the  plaintiffs,  of  a  declaration  of  trust 
of  a  satisfied  term,  where  the  party  obtaining  such  a  declaration  of 
trust  is  held  to  be  in  the  same  po.sition  as  if  he  had  obtained  an  actual 
assignment  of  it,  the  declaration  of  trust  being  equivalent  to  an  actual 
assignment,  and,  therefore,  preventing  the  trustee  from  afterwards  part- 
ing with  the  legal  estate  for  the  benefit  of  himself,  and  to  the  detri- 
ment of  those  for  whom  he  has  declared  himself  to  be  a  trustee.  Here 
the  first  mortgagee  takes  the  legal  estate  without  making  any  declara- 
tion of  trust,  —  he  never  hears  of  the  existence  of  any  trust  affecting 
the  mortgaged  property  until  after  his  money  has  been  advanced  ;  and 
in  that  state  of  circumstances  a  first  mortgagee  is,  I  apprehend,  in  the 
same  position  as  any  other  unsatisfied  mortgagee  having  notice  of  a 
subsequent  incumbrance,  and  has  a  right  to  transfer  the  legal  estate  so 
vested  in  him  to  any  person  who  will  pa^'  off  his  debt.  He  is  not  to 
be  fettered  or  incumbered  by  an}'  considerations  arising  out  of  a  trust 
which  he  has  never  undertaken,  and  of  which  he  is  never  informed 
until  after  he  has  parted  with  his  money.  Having  the  legal  estate  in 
his  hands,  he  is  justified  in  transferring  it  as  he  took  it  from  the  origi- 
nal mortgagor,  and  subject  only  to  the  equity  of  redemption  limited 
by  his  mortgage  deed,  and  may  transfer  it  to  the  second  or  to  the  third 
incumbrancer,  as  he  may  see  fit. 

That  being  the  position  of  the  first  mortgagee,  what  is  the  position 
of  the  subsequent  mortgagee,  who,  having,  like  the  first,  advanced  his 
money  without  notice  of  any  prior  trust,  obtains  from  the  first  that 
legal  estate  which  the  first  may  thus  lawfully  convey?  The  two  posi- 
tions seem  to  me  correlative.  If  the  holder  of  the  legal  estate  can 
thus  lawfully  convey  it,  the  party  to  whom  he  so  conveys  it  can  law- 
fully avail  himself  of  it  for  the  purimse  of  roiiaying  to  himself  every 
advance  which  he  may  have  made  upon  the  security  of  the  property, 
without  notice  of  the  rights  of  any  other  person  in  priority  to  his  own. 
To  that  he  is  entitled,  according  to  the  authorities,  at  any  period  after 
bill  filed,  as  well  as  before,  until  a  decree  is  made  in  the  suit.  And  I 
cannot  in  substance  distiiiguiHli  the  case  before  me  from  the  class  ot 
cases  ending  with  that  of  I'eacock  v.  IJurt. 

The  question  as  to  the  policy  of  assurance  appears  to  me  to  be  in- 
volved in  the  former.     If  I  had  held  that  the  plaintiffs,  upon  discharg- 


20G  BATES  V.  JOHNSON.  [ciiAr,  III. 

ing  the  first  mortgage,  would  be  entitled  to  redeem,  and  to  hold  the 
estate  free  from  the  subsequent  eharges,  the  consecjuent  right  would 
have  followed,  nnd  they  would  have  been  entitled  to  hold  all  the  other 
property  included  in  the  mortgage  to  the  first  mortgagee  for  the  pur- 
pose of  recouping  to  themselves  whatever  they  might  so  have  paid  in 
discharging  the  first  mortgage.  In  oilier  words,  upon  payment  of 
the  mortgage  debt  they  would  have  been  entitled  to  all  the  securi- 
ties. The  second  question,  therefore,  in  substance,  resolves  itself 
into  the  first. 

As  regards  the  first,  it  appears  to  me,  upon  a  review  of  the  whole 
class  of  authorities,  that  there  is  nothing  to  justify  me  in  holding  that 
the  first  mortgagee  could  not  lawfully'  part  with  his  legal  estate  so  long 
as  his  debt  remained  unpaid.  And  he  having  parted  with  it,  I  find 
nothing  in  the  authorities  to  authorize  me  in  saying  that  I  am  to  take 
the  legal  estate  away  from  the  bolder  of  it  until  the  whole  of  his  debt 
has  been  satisfied.-^ 

1  The  doctrine  of  "tacking,"  as  established  in  the  case  of  Marsh  v.  Lee,  1  Ch.  Ca. 
162;  Hard.  173;  2  Vent.  337,  s.  c,  although  frequently  recognized  by  the  P^nglish 
courts,  —  Bovey  v.  Skipwith,  1  Ch.  Ca.  201  ;  Anon.,  2  Ch.  Ca.  3.5;  Anon.,  2  Ch.  Ca. 
208;  Windham  v.  Atkins,  2  Ch.  Ca.  212  ;  Cockes  v.  Sherman,  Preem,  C.  C.  13;  Haw- 
kins V.  Taylor,  2  Vern.  29 ;  Brace  v.  Marlborough,  2  P.  Wms.  491  (semble)  ;  Morret  v. 
I'aske,  2  Atk.  52  {semble) ;  Matthews  v.  Cartwright,  2  Atk.  347;  Wortley  v.  Birkhead. 
2  Ves.  571  ;  3  Atk.  809,  s.  c. ;  Titley  v.  Davies,  2  Y.  &  C.  C.  C.  403  ;  Belchier  v.  But- 
ler, 1  Eden,  523 ;  5  Bro.  P.  C.  (Toml.  ed.)  292 ;  Robinson  v.  Davison,  1  Bro.  C.  C.  63  ; 
Peacock  v.  Burt,  4  L.  J.  n.  s.  Ch.  33  {semble) ;  Rooper  v.  Harrison,  2  K.  &  J.  86 
(semble) ;  Spencer  v.  Pearson,  24  Beav.  266  ;  Atherley  v.  Barnett,  52  L.  T.  Kep.  736  ; 
Ledbrook  r.  Passman,  57  L.  J.  Ch.  855 ;  Taylor  v.  Russell,  '92,  A.  C.  244,  '91,  1  Ch.  8 
(but  .see  Anon.,  Freem.  331),  —  is  to  be  regarded  as  anomalous.  Lord  Blackburn 
said,  in  Jennings  v.  Jordan,  6  App.  Cas.  714:  "Some  of  the  rules  acted  on  in  courts 
of  e(iuity  in  the  kindred  subject  of  tacking  securities  on  the  same  property  are  founded 
upon  this,  that  a  mortgage,  after  the  time  specified  for  redemption  had  e.xpired,  was 
au  absolute  estate;  which  no  doubt  it  was  at  law ;  and  that  the  equity  of  redemption 
was  only  a  personal  equity  to  take  away  the  legal  estate  from  him  in  whom  it  was 
vested,  wliich  perliaps  it  originally  was.  It  would  seem  that  now,  after  equitable 
estates  have  been  treated  and  dealt  with  for  a  very  long  time  as,  to  all  other  intents, 
estc-xtes,  any  rules  founded  ou  the  antiquated  law  ouglit  to  be  no  longer  applicable,  and 
that  ressante  ratinne,  cessare  debet  et  lex ;  bu.,some  rules  apparently  founded  on  this  an- 
tiquated law  have  been  so  uniformly  and  long  acted  upon  that  they  must  be  treated  as 
still  binding.  The  rule  was  first  laid  rlown  in  Marsh  r.  Lee,  2  Vent.  337,  that  if  there  was 
a  subsequent  mortgagee,  who,  a.s  the  legal  estate  was  in  another,  could  only  \ie  a  mortga- 
gee of  the  equity  of  redemption,  who.se  claim  being  prior  in  time  to  that  of  a  third  mort- 
gagee would  l)e  satisfied  before  it,  yet  if  the  third  mortgagee  acquired  the  legal  estate, 
even  with  full  knowledge  of  the  existence  of  the  second  mortgage,  he  should  be  entitled 
to  squeeze  out  the  second  mortgage.  In  Brace  (;.  Duchess  of  Marlborough,  2  P.  Wms. 
491,  in  1728,  the  Master  of  the  Rolls  thought  that  the  rule  of  equity  was  so  settled, 
'  not,  however,  without  great  appearance  of  hardship  ;  for  still  it  seems  reasonable  that 
each  mortgagee  .should  be  paid  according  to  his  priority,  and  hard  to  leave  a  second 
mortgagee  without  remedy,  who  might  know  when  he  lent  his  money  that  the  land  was 
of  sufficient  value  to  pay  the  first  mortgage  and  his  own  also  ;  to  be  defeated  of  a  just 
debt  by  a  matter  inter  alios  acta,  a  contrivance  between  the  first  mortgagee  and  the 
third,  is  great  severity.'  Yet  notwithstanding  these,  as  it  seems  to  me,  unanswerable 
objections  to  the  rule,  he  considered  it  established.  In  Wortley  v.  Birkhead,  2  Ves. 
Sen.  571,  Lord  Hardwicke  intimates,  I  think  pretty  plainly,  that  if  it  were  then  to  be 


SECT.  I.]  DODDS  V.   HILLS.  297 


DODDS   V.   HILLS. 
In  Chancekt,  before  Sir  W.  Page  Wood,  V.  C,  March  22,  1865. 
[Reported  in  2  Hemming  .j  Miller,  424.] 

The  plaintiff  was  a  married  woman  (suing  by  next  friend),  upon 
whom  certain  shares  in  the  Wliittle  Dean  Water  Company  had  been 
settled  for  her  separate  use.  The  shares  stood  in  the  name  of  Henry 
Hills,  as  sole  trustee,  having  formerly  stood  (as  the  share  certificate 
showed)  in  his  name  jointly  with  that  of  another  person. 

On  the  19th  of  September,  1857,  Hills  obtained  an  advance  from 
the  defendant.  Smith,  out  of  the  funds  of  a  club  of  which  Smith  was 
secretary  ;  as  security  for  which  he  executed  a  transfer  of  the  said 
trust  shares,  and  handed  the  same,  together  with  the  certificate  of  the 
shares,  to  Smith.  He  also  gave  a  promissory  note  to  the  treasurer  of 
the  club. 

Further  advances  were  made  by  Smith,  partly  out  of  the  funds  of 
the  same  and  another  club  of  which  also  Smith  was  secretary,  and 
partly  out  of  his  own  moneys  ;  and  it  was  verbalh'  arranged  between 
Hills  and  Smith  that  the  shares  should  be  held  by  Smith  as  security  for 
these  further  sums.  The  security  of  the  shares  appeared  to  have  been 
given  to  Smith  personally  to  indemnify  him,  and  not  directly  as  a  secu- 
rity to  the  clubs.  At  the  time  when  these  advances  were  made,  Smith 
had  no  notice  of  the  trust,  or  that  the  shares  were  not  the  absolute 
poperty  of  Hills.  Hills  regularly  received  the  dividends,  and  paid 
them  over  to  the  plaintiff. 

On  tiie  7th  of  June,  180.^,  Hills  absconded;  and  on  the  aOth  of 
June  a  petition  in  bankrui)tcy  was  tiled,  under  which  he  was  declared 
bankrupt. 

On  the  14th  of  June,  1863,  the  plaintiff  and  her  husband  informed 
Smith  tliat  Hills  held  the  shares  upon  trust  for  the  plaintiff. 

On  the  llUh  of  Jiiiif,  186;},  Smith  sent  tlie  transfer,  with  the  certifi- 

scttlcd  for  the  first  time  lie  would  have  decided  the  other  way,  Imt  that  it  w.ns  settled  ; 
and  in  Titley  o.  Davies,  2  Y.  &  C.  C.  C.  40.3,  in  1743,  he  acteil  upon  it ;  iiii.i  now,  after 
the  Inyise  of  nearly  a  century  and  a  half  nmre,  T  think  only  the  lefrislatnre  can  do  away 
with  thiH  rule."  See  also  West  London  Hank  r.  lieliance  Society.  2;t  Ch.  Div.  \)'}4,  <J57, 
961,  9G3  ;  2  Fisher,  Mortgages  (.3d  ed.).  GOO. 

The  English  doctrine  <»f  "  tacking  "  has  met  with  no  favor  in  tliis  country.  1  Story, 
Eq.  Jnr.  (l.'ith  e.l.),  §§41.3-419,  4  Kent  (I'ltli  ed  )  177-17'.);  Oshorn  r.  ( "arr,  12  Conn. 
19.-;,  208  ;  fJallion  r-'McCaslin,  I  Rlackf.  O.--),  n.  .3;  Wing  v.  McDow.ll,  Walk.  Ch.  17.5  ; 
Grant  d.  United  Rt.ateg  Rank,  1  Cai.  Cas.  112;  Rridgen  v.  Carhartt.  Hopkins,  2.34; 
Brazec  v.  Lancaster  I'.ank,  14  Ohio,  .31 R,  .321  ;  Henderson  c.  Neff,  11  S.  &  U.  208,  222 ; 
Chandler  v.  Dyer,  37  Vt.  .34.5  ;  Siter  v.  McClanach.an,  2  Gr.at.  280,  .300,  .301.  I'.iit  fho 
general  prevalence  of  the  system  of  registration  here  deprives  the  doctrine  of  all  prac- 
tical importance.     See  also  La  Toucho  v.  Uuusauy,  1  ISch.  &  Lef.  137,  137.  —  Kd. 


"298  DODDS   V.    HILLS.  [CIIAP.  III. 

# 

cate.  to  the  scorotnrv  of  the  company  for  registration,  and  the  shares 
were  on  the  following  day  rogistored  in  the  name  of  Smith. 

Tlie  Whittle  Dean  ^\'ater  Company  was  constituted  by  act  of 
Parliament,  with  which  the  Companies  Clauses  Consolidation  Aofc 
was  incorporated. 

The  bill  prayed  that  the  transfer  of  the  shares  might  be  set  aside ; 
or,  ni  the  alternative,  that  the  plaintiff  might  be  let  in  to  redeem. 

Mr.  Willcnck,  Q.  C,  and  3Ir.  Tornano,  for  the  plaintiff. 

3Ir.  Ilendall,  in  the  same  interest,^ 

3fr.  AmpJdett,  Q.  C,  and  Mr,  C.  C.  Barber,  for  the  defendants,  were 
not  called  upon. 

VicE-CiiANCELLOU  SiR  W.  Page  Wood.  It  Is  impossible  to  give  the 
plaintiff  any  relief  against  this  transfer.  It  is  a  case  of  great  hardship 
upon  the  plaintiff ;  but  the  defendant  Smith  does  not  appear  to  me  to 
be  in  any  way  answerable  for  that.  The  shares  stood  in  the  name  of 
Hills  apparently  as  absolute  owner  ;  and  he  purported,  as  such  owner, 
to  transfer  them  to  Smith  by  wayof  security.  There  is  some  obscurity 
in  the  evidence,  as  to  whether  Smith  took  the  shares  as  representing 
the  different  clubs ;  but  the  real  effect  of  the  evidence  is,  I  think,  that 
the  security  was  given  personally  to  Smith  himself,  which  somewhat 
simplifies  the  case.  After  the  transfer  was  given  to  Smith,  Hills  con- 
tinued to  receive  the  dividends ;  and  the  arrangement  seems  to  have 
been  this :  Smith,  being  responsible  to  his  societies  for  the  money, 
required  Hills  to  give  him,  by  way  of  indemnity,  such  a  power  over  the 
shares  as  would  enable  him.  Smith,  whenever  he  pleased,  to  make 
himself  legal  owner.  That  Hills  did,  by  executing  a  transfer,  and 
Smith  allowed  him  to  remain  on  the  register  and  receive  the  dividends 
as  long  as  he  made  no  default  in  respect  of  the  advances,  being  content 
as  mortgagee  with  the  power  given  to  him  of  registeririg  the  transfer. 
"When  this  arrangement  was  made,  Smith  had  no  notice  of  the  trust ; 
and,  after  having  received  notice,  he  registered  the  transfer.  At  the 
time  of  the  transfer  he  acquired  the  power  to  register  himself  as  owner 
of  the  shares.  Hills  could  not  displace  the  equity  thus  acquired,  nor 
was  anything  further  necessary  to  be  done  on  his  part  to  complete  the 
transaction.  Although  it  is  true  that,  as  between  him  and  the  com- 
pany. Smith  did  not  become  the  owner  until  after  registration,  nothing 
but  his  own  act  was  necessary  to  make  him  complete  master  of  the 
shares.  His  position  was  like  that  of  a  person  to  whom  an  estate  is 
conveyed,  to  become  legally  vested  on  the  performance  of  some  con- 
dition, such  as  the  making  of  a  demand,  or  the  like;  and  in  such  a 
case,  notice  of  a  trust  would  not  prevent  the  subsequent  performance 
or  effect  of  this  condition.* 

It  was  suggested  that  the  transfer  could  not  be  completed  without  a 
breach  of  trust ;  but  that  is  not  so.  After  the  notice,  Smith  did  not 
require  Hills  to  commit  any  breach  of  trust,  or  to  do  anything.     It  is 

^  The  ar^^ument  for  the  plaintiff  is  omitted.  —  Ed. 

2  See  Hume  v  Dixon,  37  Oh.  St.  66;  Buck  i;.  Winn,  11  B.  Mon.  320,  323.  — Ed. 


SECT.  I.]  DODDS  V.   HILLS.  299 

the  case  of  a  person  advanciug  money  on  an  equitable  security  without 
notice  of  a  ti'ust,  and  afterwards  getting  in  the  h^gal  estate,  and  no 
more  involves  a  breach  of  trust  than  when  a  mere  incumbrancer  gets  in 
the  legal  estate  as  tabula  in  naiifragio.  As  to  the  subsequent  securities, 
it  appears  to  me  clear  that  the  further  advances  were  made  on  the 
faith  of  having  the  security  of  the  shares.  There  has  been  no  attempt 
to  shake  the  evidence  on  this  point  by  cross-examination.  Some  sug- 
gestion was  made  that  the  defendant  was  guilty  of  negligence,  such  as 
to  fix  him  from  the  outset  with  notice  of  the  trust.  But  there  is  no 
evidence  of  any  negligence.  The  certificate  showed  only  that  Hills  and 
another  were  once  joint  owners  of  the  shares.  Even  if  the  fact  of 
money  being  in  the  hands  of  two  persons  could  be  considered  to  be 
any  kind  of  evidence  of  a  trust,  it  would  be  most  dangerous  (especially 
in  a  case  where  the  money  has  ceased  to  stand  in  two  names)  to  say 
that  a  purchaser  is  thereby  put  upon  inquiry.  There  was  nothing  to 
raise  a  legitimate  suspicion  in  any  one's  mind.  Nor  is  there  anything 
in  the  fact  that  the  mortgagor  was  left  in  the  legal  possession  of  the 
shares,  and  in  the  receipt  of  the  dividends.  Such  a  circumstance  might 
be  material  in  a  case  of  bankruptcy,  but  that  would  be  only  under  the 
doctrine  of  reputed  ownership.  There  was  notiiing  unreasonable  in 
allowing  the  mortgagor  to  hold  until  it  became  necessary  to  enforce  the 
power  of  taking  actual  possession. 

The  plaintiff  is  of  course  entitled  to  redeem,  and  there  will  be  the 
usual  decree  for  account  and  redemption.^ 

2  Redfearn  v.  Ferrier,  1  Dow,  50;  5  Pat.  (Scotch)  Ap.  Cas.  707,  s.  c  ;  Ortigosa  v. 
Browu,  47  L.  .J.  Ch.  168  (semble) ;  Socidte'-GentTale  v.  Walker,  11  App.  Cas.  20,  28; 
Koots  V.  Williamson,  38  Ch.  D.  485  {semhlc) ;  Moore  v.  Northwesteru  lia.uk,  '91,  2  Ch. 
599  (semble)  ;  Burns  i'.  Lawrie's  Trusts  (Court  of  Session,  1840)  2  D.  1348;  Brewster 
V.  Sime,  42  Cal.  139;  Thompson  v.  Toland,  48  Cal.  112;  Winter  v.  Belmont,  .'J.3  Cal. 
428;  Ati<iii.son  v.  Atkinson,  8  All.  15;  Lowell,  Transfer  of  Stock,  §  99;  1  Harvard 
Law  Rev.  5.  6  Arrord. 

Donald.son  v.  Gillot,  L.  R.  3  Eq.  274.  contra.  Sec  also  Re  Tahiti  Co.,  17  Eq.  273, 
explained  in  France  v.  Clark,  2C  Ch.  I)iv.  257,  22  Ch.  1).  830.  In  this  last  case  cer- 
tificates of  shares  with  a  power  of  attorney  signed  in  lilauk  were  jjlodgcd,  and  wrong- 
fnllv  transferred  by  the  pledgee  to  an  innocent  jjurchaser.  Tlic  blanks,  it  was  decided, 
operated  as  notice  to  the  jiurchaser,  that  he  was  buying  at  his  peril.  But  see  now 
Colonial  Bank  v.  Hepworth,  15  App.  Cas.  278-9,  per  Lord  Watson,  and  compare  2 
Ames'  Cases  on  Bills  and  Noten,  868,  §  13,  f.  —  Ei>. 


300  SHROrSlIIKE,    ETC.    CO.   r.    THE   QUEEN.  [CHA?.  Ill, 


THE  DIRECTORS,  &c.  OF  THE  SHROPSHIRE  UNION  RAIL- 
WAYS AND  CANAL  COMPANY,  Plaintiffs  in  Eukou,  v. 
THE  QUEEN,  on  the  Pkosecution  of  EMjMA  SARAH  ROB- 
SON,  Defendant  in  Ekuok. 

In  the  House  of  Lords,  Makcii  5,  9,  1875. 
[Reported  in  Law  Reports,  7  House  of  Lords,  496.] 

The  Lord  Chancellor  (Lord  Cairns).*  My  Lords,  if  it  were  not 
for  the  very  sincere  respect  which  I  entertain  for  the  unanimous  opinion 
of- the  learned  judges  of  the  Court  of  Exchequer  Chamber ,"'^  I  should  have 
tlionght  that  this  case  was  an  extremely  simple  one,  and  that  if  it  had 
fallen  to  be  decided  in  one  of  the  courts  of  equity,  to  whose  adminis- 
tration the  subject-matter  more  properly  belongs,  it  could  hardly  have 
admitted  of  any  serious  argument. 

My  Lords,  the  prosecutor  of  the  mandamus  in  this  case  was  Mrs. 
Robson,  the  widow  of  one  Christopher  Robson.  She  came  before  the 
Court  of  Queen's  Bq^ich  for  the  pur[)ose  of  obtaining  a  mandamus  to 
order  the  directors  of  the  Shropshire  Union  Railways  and  Canal  Com- 
pany to  transfer,  in  their  books,  into  her  own  name,  a  sum  of  £3,712  lOs. 
of  their  consolidated  stock  of  1854,  which  was  then  standing  in  the 
name  of  (ieorge  Holyoake.  She  came  with  an  instrument  of  transfer 
under  the  seal  of  Holyoake  executed  on  the  5th  of  May,  18GD  ;  but 
that  instrument  of  transfer  was  not  executed  until  after  notice  had 
been  given  to  her  of  the  infirmity  of  her  previous  title.  It  is  very 
properly  admitted  on  both  sides  that  the  case  must  be  dealt  with  as  if 
it  had  fallen  to  be  decided  before  that  document  had  been  executed. 

Looking  at  the  case  as  it  stood  before  that  document  was  executed, 
the  facts  which  are  clearly  to  be  borne  in  mind  are  these  :  George  Holy- 
oake had  standing  in  his  own  name  (for  I  disregard  tlie  history  of  the 
period  during  which  another  name  was  associated  with  his)  stock  of  the 
company  to  the  value  of  £3,7 1 2  1 0.s.  Undoubtedly  he  held  that  stock  as 
trustee  for  the  defendants,  and  in  no  other  character.  The  special  case 
states  that  this  stock  was  in  his  name  in  the  year  18^3,  from  which  time 
he  has  held  it  "  as  trustee  in  trust  for  the  Shropshire  Union  Railways 
and  Canal  Company,  and  in  no  other  capacit}'  whatsoever,  and  thence- 
forth from  time  to  time  all  the  dividends  which  have  become  payable  on 
the  stock  were  invested  in  the  names  of  the  chairman  of  the  company 
and  other  directors  thereof,  who  have  held  the  same  as  trustees  for  the 
company." 

It  was  perfectly  legitimate  that  these  defendants  should  own  the 
stock.     It  is  perfectly  in  accorda^ice  with  law  that  they  should  have 

1  All  that  is  1  laterial  to  tlic  understanding  of  the  ca.se  being  contained  in  the  judg- 
ment of  the  Lord  Chancellor,  the  rest  of  the  case  is  omitted.  —  Ed. 

2  L.  R.  8  Q.  B.  420.  —  Ed. 


SECT.  I.]  SHROPSHIRE,   ETC.    CO.    V.   THE   QUEEN.  301 

had  that  stock,  which  the}'  could  not  hold  iu  their  own  names,  stand- 
ing for  them  iu  the  name  of  a  trustee  or  iu  tiie  names  of  trustees,  and 
in  that  state  of  things  undoubtedly  the  position  of  matters  was,  that 
the  defendants  had  the  whole  beneficial  interest  in  the  stock  belonging 
to  and  forming  part  of  the  property  of  the  company.  Theirs  was  the 
equitable  title.  Holyoake  was  a  person  who  held  merely  the  legal  title 
and  the  right  to  transfer  the  stock.  He  wa^  able,  if  not  interfered 
with,  to  transfer  the  stock  to  any  other  person,  and  to  give  a  valid  re- 
ceipt for  the  purchase-money  to  any  person  who  had  not  notice  of  the 
beneficial  interest  of  the  defendants.  On  the  other  hand,  any  person 
with  whom  Ilolyoake  might  deal  by  virtue  of  his  title  upon  the  register, 
had,  or  ought  to  have  had,  these  considerations  present  to  his  mind. 
He  ought  to  have  known  that  although  Holyoake's  name  appeared 
upon  the  register  as  the  owner  of  these  shares,  and  although  Holyoake 
could  present  to  him  the  certificates  o'f  this  ownership,  still  it  was  per- 
fectly possible  either  that  these  shares  were  the  beneficial  property  of 
Holyoake  himself,  or  that  they  were  the  property  of  some  other  per- 
son. If  he  dealt  merely  by  equitable  transfer,  or  equitalile  assignment 
with  Holyoake,^  and  if  it  turned  out  that  the  beneficial  ownership  of 
Holyoake  was  coincident  and  coextensive  with  his  legal  title,  well  and 
good  ;  his  right  would  be  accordingly,  so  far  as  Holyoake  was  con- 
cerned, complete.  But  if,  on  the  other  iiaud,  it  should  turn  out  that 
Holyoake's  beneficial  interest  was  either  7iil,  or  was  not  coextensive 
with  the  whole  of  his  apparent  legal  title,  then  I  sa}'^  any  person  deal- 
ing with  Holyoake,^  by  way  of  equitable  bargain  or  contract,  should 
have  known  that  he  could  only  obtain  a  title  which  was  imperfect,  and 
would  not  bind  the  real  beneficial  owner.  And,  my  Lords,  he  also 
might  have  known,  and  should  have  known,  this,  that  if  he  desired  to 
perfect  his  title,  and  make  it  entirely  secure,  he  had  the  most  simple 
means  open  to  him,  —  he  had  only  to  take  Ilolyoake  at  his  word.  If 
Holyoake  represented  that  he  was  the  real  owner  of  these  shares,  the 
proposed  transferee  had  only  to  go  with  Holyoake,  or  to  go  with  the 
authority  of  Ilolyoake  in  his  possession,  to  the  company,  ami  to  re- 
quire a  transfer  of  those  shares  from  the  name  of  Ilolyoake  into  his 
own  name.  If  he  had  obtained  that  transfer,  and  the  company  had 
made  it,  no  question  could  have  arisen,  and  no  litigation  could  subse- 
quently have  taken  place. 

That  being  the  state  of  things,  your  Lordshii)s  have  on  the  one  hand 
the  dirortors  dearly  the  erinitalile  owners  of  the  stock  in  question. 
You  have,  on  tiie  other  hand,  Mr.  Kc^bson,  the  person  dealing  with 
Mr.  Holyoake  for  an  equitable  charge,  having,  in  his  power,  if  he  was 
BO  minded,  to  obtain  a  perfectly  valid  legal  charge,  which  would  have 
made  his  title  complete.  Your  LordshipH  have  to  deal  with  a  case  of 
a  pre-exisling  and  uufloubtcd  e(|uitabIo  title,  and  circumstances  wliicli 
are  alleged  to  have  defeated  and  to  have  taken  away  that  jjre-existing 

'  Ilolyoake  deposited  the  cr;rfificatf'.s  with  Robson  as  security,  and  covenanted  to 
execute  a  legal  mortgage  of  the  shares  on  rcqucat.  —  Ed. 


302  siiuorsiiiRE,  etc.  co.  v.  the  queen.  [chap,  iil 

equitable  title.  IMy  Lords,  that  pre-existing  equitable  title  may  be  de- 
foatod  by  a  supervening  legal  title  obtained  by  transfer.  And  1  agree 
with  what  has  been  contended,  that  it  may  also  be  defeated  by  conduct, 
by  representations,  by  misstatements  of  a  character  which  would  operate 
and  inure  to  forfeit  and  to  take  away  the  pre-existing  equitable  title. 
But  I  conceive  it  to  be  clear  and  undoubted  law,  and  law  the  enforce- 
ment of  which  is  required  for  the  safety  of  mankind,  that,  in  order  to 
take  away  any  pre-existing  admitted  equitable  title,  that  which  is  relied 
upon  for  such  a  purpose  must  be  shown  and  proved  by  those  upon 
whom  the  burden  to  show  and  prove  it  lies,  and  that  it  must  amount 
to  something  tangible  and  distinct,  something  which  can  have  the  grave 
and  strong  effect  to  accomplish  the  purpose  for  which  it  is  said  to  have 
been  produced. 

I  have  anxiously  striven  to  understand  what  were  the  circumstances 
or  what  was  the  line  of  conduct  which  is  said  in  this  case  to  operate  to 
defeat  the  admitted  equitable  title,  and  I  have  been  able  to  discover 
only  four  matters  which  are  stated  either  separately  or  all  together  to 
have  produced  that  effect. 

My  Lords,  in  the  first  place,  the  arguments  at  your  Lordships'  bar 
on  behalf  of  the  respondent  appeared  to  me  to  go  almost  to  this,  that 
whenever  you  have  an  equitable  owner  who  is  the  absolute  owner,  that , 
is  to  say,  entitled  to  the  whole  equitable  interest,  such  a  person  ought 
not  to  have  a  trustee  at  all  holding  the  indicia  of  legal  ownership  ;  or, 
if  he  chooses,  for  his  own  purpose,  to  have  such  a  trustee,  he  must  be 
in  danger  of  suffering  for  every  act  of  improper  conduct  by  that  trustee  ; 
and  that,  therefore,  if  the  person  entitled  absolutely  to  the  equitable 
interest  in  a  share  in  a  railway  company,  chooses  for  his  own  purpose 
to  have  that  share  standing  in  the  name  of  a  trustee  for  him.  he  will  be 
bound  not  merely  by  a  valid  legal  transfer  of  that  share  by  the  trustee, 
but  by  any  equitable  dealing  or  contract  which  the  trustee  may  choose 
to  enter  into.  My  Lords,  that  is  a  very  serious  proposition.  It  goes 
not  merely  to  shares,  but  it  goes  to  land,  and  to  every  other  species  of 
property  ;  and  it  goes  to  say  that,  whereas  there  is  a  large,  well-known, 
recognized,  and  admitted  system  of  trusts  in  this  country,  that  system 
of  trusts  is  to  be  cut  down  and  moulded  and  reduced  to  this,  that  it  is 
to  be  a  system  applicable  only  to  infants,  married  women,  or  persons 
with  limited  interests  ;  and  that  wherever  the  limited  interest  has 
ceased,  and  the  equitable  interest  has  become  entire  and  complete 
without  any  limit,  there  the  equitable  owner  is  under  some  measure  of 
obligation  with  regard  to  his  duty  of  watching  his  trustee,  an  obliga- 
tion which  does  not  lie  upon  a  limited  owner.  I  find  no  authority  for 
such  a  proposition,  and  I  feel  satisfied  that  your  Lordships  will  not  be 
disposed  to  introduce,  for  the  first  time,  that  as  a  rule  of  law. 

"What  was  the  next  circumstance  founded  upon?  It  was  this,  that 
the  equitable  owners,  the  directors,  allowed  this  stock  to  stand  in  one 
name  only.  My  Lords,  is  the  doctrine  now  to  be  introduced  for  the 
first  time,  that  a  cestui  que  trust  who  has  one  trustee  only  is  to  be 


SECT.  I.]  SHROPSHIRE,   ETC.    CO.    V.   THE   QUEEN.  303 

bound  to  exercise  a  greater  amount  of  vigilance  or  to  take  further 
precautions  tlian  lie  would  have  to  take  if  he  had  two  or  three  trus- 
tees? ^Vhat,  then,  is  to  be  said  to  the  case  of  there  being  two  or 
three  trustees,  and  one  becoming  the  survivor?  Is  there,  then,  to  be 
a  fresh  dut}'  cast  upon  the  cestui  que  trust,  which,  if  he  does  not 
perform,  he  is  to  be  in  some  danger  from  the  act  of  that  one  trustee, 
and  in  some  way  to  be  responsible  for  that  act  for  which  he  would 
not  be  responsible  if  there  had  been  more  trustees  than  one  ?  I 
know  of  no  authority  for  that  proposition,  and  I  think  your  Lord- 
ships will  not  be  prepared  to  introduce  now  for  the  first  time  that  new 
rule  of  law. 

What,  my  Lords,  was  the  next  circumstance  that  was  founded  upon? 
It  was  this,  that  this  one  trustee  had  previously  committed  a  breach 
of  trust,  and  that  the  breach  of  trust  had  been  condoned  by  the  cestuis 
que  trust.  No  doubt  that  which  was  in  the  e3'e  of  any  court  a  breach 
of  trust  had  been  committed.  It  had  been  observed  by  the  cesfuis  que 
trust,  and  the  attention  of  the  trustee  had  been  called  to  it.  He  pave 
to  the  cestuis  que  trust  a  reason,  which  your  Lordships  may  think  to 
have  been  satisfactory  or  unsatisfactory,  but  which  in  point  of  fact 
was  accepted  by  the  cestuis  que  trust.  Their  confidence  in  the  trustee 
does  not  ai)pear  to  have  been  shaken  ;  they  evinced  that  confidence 
by  allowing  him  to  replace  the  stock  in  his  sole  name,  and  to  have 
it  in  his  sole  name.  They  could  have  had  no  sinister  or  improper 
object  in  that,  and  they  gave  by  that  the  strongest  proof  that  they 
were  satisfied  that  their  trustee  ought  not  to  be  held  to  have  forfeited 
their  confidence.  But,  my  Lords,  I  repeat  that  here  again  is  a  sug- 
gestion that  a  new  rule,  entirely  unknown  in  courts  of  equity,  so  far 
as  I  am  aware,  should  be  introduced  ;  namely,  that  persons  claiming 
by  a  subsequent  equitable  title  are  to  be  allowed  to  displace  a  previous 
equitable  title  by  entering  upon  a  review  of  the  previous  conduct  of 
the  trustee  who  has  created,  or  attempted  to  create,  a  second  equitable 
title,  and  if  they  can  find  any  previous  misconduct  by  him,  to  found 
upon  that  previous  misconduct  some  claim  to  displace  the  previous 
equitable  title. 

Then,  my  Lords,  in  the  fourth  jdaco,  this  circumstance  was  relied 
upon,  that  tlie  cestuis  que  trust  had  allowed  the  trustee  to  have  posses- 
sion of  the  certificates  of  the  shares.  Now,  a  certificate  of  tiie  shares 
or  stock  of  a  railway  company  is  merely  a  solemn  alliriuation  under 
the  seal  of  the  company  that  a  certain  amount  of  shares  or  stock 
stands  ill  the  naiiio  of  tlio  individual  inontifjiicd  in  the  certificate.  Un- 
dotihtedly  tiu;  stock  did  stand  in  the  name  of  Mr.  Ilolyoakc.  If  I  am 
right,  the  directors  were  justified  in  having  it  in  his  name,  and  they 
were  also  justified  in  giving  him  the  certificates,  which  did  no  more 
than  tell  that  which  any  person  would  have  found  out  by  looking  at 
their  books  ;  namely,  that  the  stork  stood  in  his  name.  It  is  said  that 
there  was  some  coniph-te  protection  in  the  possessif)n  of  the  certifi- 
cates, so  that  if  the  holder  passed  them  over  to  another  person,  that 


304        SHROPSHIRE,  etc.  co.  v.  the  queen.    [chap.  hi. 

other  person  would  think  he  obtained  a  good  title,  because  no  transfer 
could  be  permitted  without  the  production  of  the  certificates.  But,  my 
Lords,  whether  a  transfer  should  be  perniitted  or  not  under  tliose 
circumstances  would  be  entirely  wnthin  the  discretion  of  the  direc- 
tors. Tliey  Avere  not  bound  to  permit  a  transfer  without  the  pro- 
duction of  the  certificates  ;  but,  though  not  bound  to  permit  a  transfer, 
T  api)rchend  they  would  not  l)e  in  any  way  answerable  if  the  transfer 
should  be  in  any  case  made  without  the  production  of  the  cei'tilicates 
of  the  shares. 

Therefore,  my  Lords,  if  we  are  to  proceed,  as  your  Lordships  will 
proceed,  upon  the  well-established  system  of  trusts  prevailing  in  this 
conntr}',  I  cannot  find  that  there  was  anything  done  by  the  cestuis  que 
trust  in  this  case  which  ought  to  forfeit  and  displace  that  equitable  title 
of  which,  as  I  began  by  saying,  they  were  clearly  possessed. 

The  case  would  be  entirely  different  if  any  misstatement  had  been 
made  by  the  directors,  if  anything  had  been  said  by  them  to  Mr.  Rob- 
son,  or  if  anything  had  been  placed  by  them  on  the  face  of  any  docu- 
ment stating  something  which  Avas  not  the  truth,  upon  the  faith  of 
which  Mr.  Robson  might  have  acted.  That  was  the  question  which 
came  before  the  court  in  the  case  of  Rice  v.  Rice,'  referred  to  at  your 
Lordships'  bar,  and  which  appears  to  have  been  an  authority  acted 
upon  by  the  Court  of  Exchequer  Chamber.  There  a  vendor,  who  un- 
questionably would  have  been  held  to  have,  in  the  eye  of  the  court  of 
equity,  a  lien  for  his  purchase-money,  for  some  purpose  indorsed  upon 
the  deed  a  receipt  for  that  purchase-moneys  stating  that  it  had  been 
paid.  That  was  just  the  same  thing  as  if  he  had  stated  that  he  had 
not  a  lieu,  or  that  he  did  not  wish  to  insist  upon  a  lien  for  the  purchase- 
money  ;  and  it  would  have  been  contrary  to  the  first  principles  of 
equity,  and,  indeed,  of  common  sense,  to  say  that,  after  that  deed  had 
been  given  by  him  to  the  purchaser,  and  the  purchaser  armed  with 
that  deed  had  created  an  interest  in  some  third  party  on  the  faith  of 
that  statement,  the  vendor  could  subsequently  come  forward,  and, 
as  against  that  third  party,  claim  to  be  put  in  possession  of  that  lien 
which  by  the  indorsement  of  that  receipt  he  had  virtually  surrendered. 

My  Lords,  the  case  of  Waldron  v.  Sloper,^  which  was  decided  by 
the  same  learned  judge,  is  a  case  also  entirely  separate  and  distinct 
from  the  present.  There  the  incumbrancer,  wlio  had  no  interest  what- 
ever as  a  mortgagee,  except  by  the  delivery  to  him  and  the  retainei'  by 
him  of  the  title-deeds  of  the  propert}',  chose  to  give  up  those  title- 
deeds.  It  is  true  that  he  gave  them  up  upon  an  allegation  that  they 
were  wanted  for  a  temporary  purpose  ;  but  in  place  of  asking  for  them 
again,  and  of  regaining  the  possession  of  them  when  that  temporary 
purpose  was  satisfied,  he  allowed  them  to  remain  in  the  hands  of  the 
mortgagor  for  three  or  four  years,  and  during  that  space  of  time,  during 
which  he  was  virtually  leaving  his  security  in  the  possession  of  another, 
that  other  by  the  possession  of  the  title-deeds  was  enabled  to  create  a 

1  2  Drew.  73.  2  i  Drew.  193. 


SECT.  I.]  SHROPSHIRE,   ETC.    CO.    V.   THE   QUEEN.  305 

fresh  equitable  mortgage,  which  was  held,  in  cousequeuce  of  the  laches 
of  the  first  mortgagee,  to  have  priority  over  the  tirst. 

My  Lords,  neither  of  those  cases  has,  as  it  appears  to  me,  any  appli- 
cation to  the  present.  The  present  appears  to  me  to  be  simply  the  case 
of  an  ordinary  trustee  holding  property  of  the  kind  in  question  for  a 
cestui  que  trust,  and  an  incumbrance  created  b}'  the  trustee,  which  can 
only  carry  to  that  fresh  incumbrancer  such  interest  as  the  trustee  could 
give.  The  trustee  could  not  give  an  interest  as  against  his  cestui  que 
trust,  and  therefore  it  appears  to  me  that  the  incumbrancer,  now  repre- 
sented by  the  plaintiff  in  the  mandamus,  is  not  entitled  to  have  the 
transfer  in  the  company's  books  of  the  stock  in  question. 

I  therefore  submit  to  your  Lordships,  and  move,  that  the  decisicu 
of  the  Court  of  Exchequer  Chamber  should  be  reversed,  and  that  the 
judgment  on  the  motion  for  a  mandamus  should  be  entered  for  the 
defendants.^ 

1  Pinkett  v.  Wright,  2  Hare,  120,  12  CI.  &  F.  764  s.  c. ;  Attorney-General  v.  Flint, 
4  Hare,  147,  156;  Mauningford  v.  Toleinau,  1  Coll.  670;  Clack  v.  Holland,  19  Beav. 
262,  274  [sembie)  (exidaining  JIartiu  v.  Sedgwick,  9  Eeav,  333) ;  Roberts  i-.  Croft,  2 
De  G.  &  J.  1  ;  Stackhouse  v.  Jersey,  1  J.  &  H  721  ;  Cory  v.  Eyre,  1  D.  J.  &  S.  149 
[senible);  Baillie  v.  McKewan,  35  Beav.  177;  Newton  v.  Newton,  L.  R.  4  Ch.  Ap.  143;  6  Eq. 
135,  s.  c.  {sembie) ;  Waldy  v.  Gray,  20  Eq.  238  ;  Re  Morgan,  18  Ch  D.  93  :  New  London 
Bank  v.  Brocklel)ank,  46  L.  T.  Rep  339  ;  Nat.  Bank  v.  Jackson,  33  Ch  Div.  1  ;  Huinber 
V.  Richards,  45  Ch.  D.  589  ;  Ray  v.  Ferrell  (Ind.,  1891)  27  N.  E.  R.  159;  Winborn  v. 
Gorrell,  3  Ired.  Eq.  117;  Auketel  v.  Converse,  17  Ohio  St.  11  {sembie);  Wood  v. 
Maitland,  10  I'liila.  84;  1  Leg.  Chron  R.  348,  s.  c  ;  Pinson  v.  Ivey,  1  Yerg.  296,  338 
{sembie)  ;  Craig  v.  Leiper,  2  Yerg.  193;  Pillow  v.  Shannon,  3  Yerg.  508;  Briscoe  v. 
A.sliby,  24  Grat.  454  {sembie)  Accord.  But  see  contra,  St.  Jolmsbury  i;.  MoitcU,  55  Vt. 
165.  ' 

Similarly,  if  one  who  has  given  an  equitable  mortgage  upon  property  should  after- 
wards .sell  or  mortgage  the  same  property  to  another,  wiio  was  content  to  advance  his 
money  without  e.xactiiig  a  conveyance  of  the  legal  title  from  the  mortgagor,  tlie  rights 
of  the  first  equitable  mortgagee  would  be  jtaramount.  Tyloe  v.  Webb,  6  Beav.  552 ; 
Steven.^  «.  Stevens,  2  Coll.  20;  Allen  v.  Knight,  5  Hare.  272;  11  Jur.  527  (H.  L.); 
Roberts  (•  Croft,  2  De  G.  &  J.  1  ;   Hunt  r.  Elmos,  2  D.,  F.  &  J.  578. 

But  if  a  cestui  i/iie  trust,  or  equitable  nuirtgagee,  or  other  ecjuitable  claimant,  by 
words  or  conduct  encourages  the  belief  that  the  trustee  or  mortgagor  is  the  absolute 
beneficial  owner  of  the  property,  he  will  of  course  be  estopped  to  assert  the  trust  (ir 
mortgage  against  .i  subsequent  eciuitable  incuinl>rancer  who  has  acted  on  the  faitii  of 
Huch  words  or  conduct.  Waldron  r.  Sloper,  1  Drew.  193  ;  Rice  v.  Itice,  2  Drew.  73  ; 
Worthington  t:  German,  10  W.  R.  187;  Dowlo  v  Sanders,  2  H.  &  M.  242;  Layard  v. 
Maud,  L.  R.  4  Eq.  397  ;  Hunter  v.  Walters,  L.  R.  7  Ch.  Ap.  75  ;  L.  R.  11  Eq.  292,  s.  c.  ; 
Bickertf)n  v.  Walker,  31  f'h.  1).  151  ;  Karrand  c.  Yorkshire  Co.,40Cii.  D.  182;  Stouer 
V.  Br.iwn,  1ft  Ind.  464  ;  Besson  v.  Eveland,  20  N.  J.  E(|  468  ;  Wilson  u.  llick.s,  40  Oh, 
-^t.  418.  See  aim  Union  Bank  v.  Kent,  39  Ch.  Div.  238;  Niveu  v.  Belknap,  2  Johua. 
373  ;  Loach  v  An-sbaclier,  55  Pa.  85.  —  Ed. 


20 


306  EYKE  V.  BURMESTER.  [CIIAP.  IIL 


T.   J.    EYKE,   Appellant,  v.   J.  W.   BURMESTER  and   Others, 

Respondents. 

In  the  House  of  Louds,  April  1,  4,  7,  May  20,  18G2. 

[Reported  in  10  Ilouse  of  Lords,  90.] 

The  Lord  Chancellor  (Lord  Westburt).^  My  Lords,  the  facts 
material  for  the  decision  of  this  appeal  are  few,  and  may  be  shortly 
stated.  In  October,  1854,  the  late  Mr.  John  Sadleir  made  a  mortgage 
to  the  appellant,  Mr.  Eyre,  of  certain  estates  in  Ireland,  to  secure  the 
payment  by  Sadleir  to  Eyre  of  considerable  sums  of  money.  After- 
wards, and  in  September,  1855,  John  Sadleir,  being  very  largely  in- 
debted to  the  London  and  County  Joint  Stock  Bank,  conveyed  these 
estates  and  other  large  estates  in  Ireland  to  the  respondents,  who 
represent  the  bank,  to  secure  such  debt  and  further  advances  then 
made  by  the  bank  to  Sadleir.  No  mention  was  made  by  Sadleir  to 
the  respondents  of  the  fact  of  the  mortgage  to  Eyre ;  but  the  estates 
in  question  were  conveyed  by  Sadleir  to  them  as  free  from  any  en- 
cumbrance. Before  this  mortgage  to  the  bank  was  completed  by  re- 
gistration of  the  deeds  in  Ireland,  the  fact  of  Eyre's  mortgage  was 
discovered  by  the  agents  of  the  respondents,  who  therefore  refused 
to  allow  the  arrangement  between  Sadleir  and  themselves  to  remain 
nnless  he  obtained  a  release  from  Eyre  of  the  estates  in  question. 
This  Sadleir  engaged  to  do  ;  and  he  prevailed  upon  Eyre  to  execute  a 
deed  of  reconveyance  to  Sadleir  liimself  of  these  estates,  in  considera- 
tion of  Eyre's  receiving  from  Sadleir  other  securities  of  equal  or  greater 
value.  The  substituted  securities  consisted  chiefly  of  a  large  number 
of  shares  in  the  Royal  Swedish  Railway,  and  of  a  promissory  note  for 
£12,000,  expressed  to  be  made  and  signed  by  Mr.  Dargan.  But  the 
shares  were  fictitious,  having  been  fabricated  by  John  Sadleir  for  the 
purpose,  and  the  promissory  note  was  a  forgery.  An  actual  fraud  of 
a  gross  and  criminal  character  was  therefore  committed  by  Sadleir 
upon  Eyre ;  and  by  means  of  that  fraud  the  release  of  Eyre's  mort- 
gage was  obtained. 

The  release  was  contained  in  a  deed  dated  the  5th,  but  executed  on 
■the  13th  of  October,  1855,  By  it  Mr.  Eyre  reconveyed,  granted,  re- 
leased, and  confirmed  unto  John  Sadleir  the  estates  comprised  in  the 
mortgage  deed  of  October,  1854.  No  consideration  for  this  reconvey- 
ance is  expressed  in  the  deed  itself,  but  the  real  agreement  between 
the  parties  is  contained  in  a  contemporaneous  agreement  of  the  Gth  of 
October,  1855. 

After  the  execution  of  this  deed  of  reconveyance  to  John  Sadleir  no 
further  conveyance  was  made  by  Sadleir  to  the  respondents.  They 
were  assured  of  the  fact  of  the  reconveyance,  and  the  mortgage  was 

^  See  supra,  70,  n.  1 .  Tlie  concurring  opinions  of  Lord  Cranworth  and  Lord  Chelms- 
ford are  also  omitted.  —  Ed. 


SECT.  I.]  EYRE   V.    BURMESTER.  307 

either  completed  or  allowed  to  continue.  The  estate  so  reconveyed 
by  Eyre  remained  in  John  Sadleir  until  he  committed  suicide  in  the 
month  of  February,  1856.  On  that  event,  the  fraud  of  Sadleir  was 
discovered. 

These  estates  have  been  since  sold  by  an  order  of  the  Encumbered 
Estates  Court  in  Ireland.  With  respect  to  the  proceeds  of  that  sale,  a 
contest  has  arisen  between  Eyre  and  the  London  and  County  Bank ; 
Eyre  claims  the  benefit  of  his  original  mortgage,  and  insists  that  the 
reconveyance  is  void  for  fraud.  The  bank  directors  claim  the  benefit 
of  the  reconveyance  as  purchasers  for  valuable  consideration,  without 
notice  of  the  fraud  committed  by  Sadleir  on  Eyre,  and  on  that  ground 
the  court  below  has  given  judgment  in  their  favor. 

A  purchaser  for  valuable  consideration  without  notice  will  not  be 
deprived  by  a  court  of  equity  of  any  advantage  at  law  which  he  has 
fairly  obtained  for  his  protection.  But  in  the  present  case  the  estate 
reconveyed  by  Eyre,  remained  in  Sadleir,  and  was  never  conveyed  by 
Sadleir  to  the  bank.  In  answer  to  this  objection,  the  respondents  in- 
sist on  the  estoppel  created  by  the  previous  conveyance.  This  answer 
would  be  good  as  against  Sadleir  and  all  claiming  under  him.  The 
estoppel  created  by  the  antecedent  contract  aud  conve3'auce  by  Sadleir 
would  bind  parties  and  privies,  that  is,  Sadleir  and  those  claiming  un- 
der him.  But  the  claim  of  Eyre  is  against  Sadleir  by  paramount  right, 
to  recover  the  estate  of  which  EjM-e  had  been  deprived  by  fraud,  and 
Sadleir  acquired  no  interest  to  feed  his  prior  contract  by  virtue  of  that 
fraudulent  transaction. 

It  is  urged  by  the  respondents  that  the  reconveyance  when  made  by 
Eyre  enabled  Sadleir  to  obtain  money  from  the  bank,  and  that  the 
mortgage  was  completed  on  the  faith  of  the  reconveyance.  The  evi- 
dence does  not  appear  to  me  to  prove  either  of  these  positions.  But 
granting  that  it  docs,  the  reconve^^ance  was  to  Sadleir  and  was  ob- 
tained by  him  by  fraud  and  covin.  There  was  no  contract  or  direct 
communication  between  the  respondents  and  Eyre,  who  acted  with 
perfect  bona  fides.  The  respondents  left  Sadleir  to  obtain  the  recon- 
veyance, and  thoy  can  claim  the  benefit  of  it  only  under  Sadleir,  whose 
act  they  must  take  as  it  is.  If  (which  is  not  proved)  thoy  had  ad- 
vanced money  to  Sadleir  on  the  faith  of  the  release  and  their  actual 
possession  of  it,  but  without  taking  a  conveyance,  they  might  have 
had  a  lien  on  the  deed  itself;  l)ut  their  interest  in  the  estate  being 
equitable  only  would  still,  in  my  opinion,  have  been  subject  to  the 
superior  equity  of  Eyre.'  "Whilst  the  estate  remained  in  Sadleir,  so 
long  was  it  liable  to  be  pursued  and  recovered  by  Eyre.  But  there  is 
no  Hullicient  proof  of  any  such  advance  by  the  bank ;  and  the  only 
foundation  of  the  bank's  claim  is  the  mortgage  by  Sadleir  prior  to  the 
deed  of  reconveyance.     That  mortgage  and  contract  would  bind  any 

'  Parkpr  v.  Clarkn,  HO  Roav.  54  (hut  hco  Fronch  r.  Hope,  .'if,  L.  T.  Rop.  57) ;  Pea- 
body  V.  Kenton,  3  15.irh.  (,'li.  J5I,  404-5  Accord,  beo  also  the  analogous  cases  of  bills 
of  exchange,  supra,  p.  000,  n.  0.  —  Ei>. 


308  CAVE   V.   MACKtINZIE.  [CHAP.  IIL 

iutorost  sul)soqucntly  acquired  by  Sailleir.  lUit  under  the  recor.vey- 
auce  he  obtahied  uoue  ;  for,  as  between  Sadleir  and  Kyre,  the  hitter 
was  still  the  owner,  and  might  at  any  time  during  the  life  of  Sadleir, 
by  bill  in  etjuity  have  set  aside  the  release,  and  obtained  a  reconvey- 
ance of  the  estate,  and  an  interim  injunction  to  restrain  any  alienation 
of  it  by  Sadleir.  This  equitable  title  still  remains  unimpaired,  and 
ought  to  be  preferred  to  any  claim  by  the  bank. 

I  therefore  advise  your  Lordships  that  the  orders  of  the  court  below 
be  reversed,  and  that  it  be  declared  that  the  claim  of  the  appellant  to 
priority  in  respect  of  his  mortgage,  ouglit  to  have  been  allowed  ;  and 
that  the  case  be  remitted,  with  that  declaration,  to  the  Landed  Estates 
Court.  If  the  appellant  has  obtained  any  additional  security  under 
the  agreement  of  the  Gth  October,  1855,  not  comprised  in  his  original 
mortgage,  that  must  be  given  up  or  accounted  for  to  the  bank.' 


CAVE  V.   MACKENZIE. 
In  Chancery,  before  Sir  George  Jessel,  M.  R.  April  20,  1877. 

[Reported  in  46  Law  Journal  Reports,  Chancenj,  5G4.] 

The  defendant  William  Franks  Mackenzie  entered  into  a  contract  in 
writing  for  the  purchase  of  a  freehold  farm  at  the  price  of  £4,600,  and 
afterwards  assigned  the  benefit  of  the  contract  to  his  son,  the  defend- 
ant James  Talfourd  Mackenzie,  in  consideration  of  a  debt  alleged  to 
be  due  from  the  former  to  the  latter  for  his  services.  The  claim  in  the 
action,  t'o  which  the  vendor  was  not  a  party,  was  for  a  declaration  that 
\Villiam  Franks  Mackenzie  entered  into  and  signed  the  contract  as 
agent  for  the  plaintiffs,  and  not  as  purchaser  on  his  own  account,  and 
for  an  injunction  and  damages.  An  issue  was  directed,  and  the  jury 
found  a  verdict  for  the  plaintiffs  in  terms  of  the  above  declaration. 

The  action  nowcame  on  upon  motion  for  judgment.  William  Franks 
Mackenzie  by  his  defence  claimed  the  benefit  of  the  Statute  of  Frauds, 
and  James  Talfourd  Mackenzie  by  his  defence  insisted  that  he  was  a 
purchaser  for  value  from  his  father  without  notice  of  the  alleged  agency. 

Mr.  Davey  and  Mr.  lionicr,  for  the  plaintiffs. 

Mr.  Chitty  and  Mr.  Cracknall,  for  the  defendants. 

The  Master  of  the  Rolls.  —  I  must  say  that  I  am  surprised  at 
the  way  in  which  this  case  has  been  contested  after  the  verdict  of  a 
jury.  The  case  made  by  the  plaintiffs  is  one  of  extreme  simplicity.  It 
is  that  the  defendant  William  Franks  Mackenzie  was  instructed  by  them 
to  buy  a  farm  for  £4,600 ;  that  William  Franks  Mackenzie  entered 

1  Heath  v.  Crealock,  10  Ch.  22 ;  Kelley  v.  Jenness,  50  Me.  455  ;  Jackson  v.  Mills,  13 
Johns  463 ;  Sinclair  v.  Jackson,  8  Cow.  587  ;  Jackson  v.  ITf)ffnian,  9  Cow.  271  ;  Bur- 
chard  V.  Hubbard,  11  Oh,  316  ;  Buckingham  v.  Hanna,  2  Oh.  !St.  555;  Gregory  v.  Peo- 
l\va,  80  Va.  355  Accord.  —  Ed. 


SECT.  I.J  CAVE   V.    MACKENZIE.  309 

into  the  contract  in  his  own  name  ;  and  afterwards  finding  that  it 
was  a  beneficial  contract,  asserted  that  he  was  beneficial  owner  in 
equity  of  the  estate,  and  denied  that  he  was,  as  the  jury  have  found 
he  was,  the  agent  of  the  plaintiffs  in  buying  it.  Furthermore  it  ap- 
pears that  with  a  view  of  preventing  the  plaintiffs  obtaining  the  benefit 
of  the  contract,  which  is  still  a  contract  at  this  present  moment,  he 
made  an  agreement  with  his  son,  the  defendant  James  Talfourd  Mac- 
kenzie, and  in  consideration  of  a  sum  of  money  due  to  him,  or  alleged 
to  be  due  to  him  for  his  services,  transferred  to  James  Talfourd  Mac- 
kenzie his  alleged  equitable  mterest  under  the  contract. 

James  Talfourd  Mackenzie  claims  the  benefit  of  such  interest  as  pur- 
chaser for  value  without  notice,  and  prays  the  same  benefit  of  this 
defence  as  if  he  had  raised  the  same  by  plea.  William  Franks  IMac- 
kenzie  asks  to  have  the  benefit  of  the  statute  passed  for  the  prevention 
of  frauds  and  perjuries,  that  is,  for  the  prevention  of  the  very  thing  of 
which  he  has  been  convicted,  and  he  has  the  good  sense  and  sound 
judgment  to  instruct  counsel  to  argue  that  the  statute  passed  for  that 
purpose  is  to  prevent  the  only  order  which  I  can  make  against  him, 
which  is,  that  he  pa}'  the  costs  of  the  litigation  occasioned  by  such 
fraud. 

The  defences,  like  all  legal  defences,  must  be  considered  and  de- 
cided without  reference  to  the  behavior  of  any  party  to  the  litigation, 
and  I  must  say  whether  the}'  are  well  founded  in  law.  First  of  all  I 
will  deal  with  the  defence  of  James  Talfourd  Mackenzie.  He  has  only 
claimed  the  benefit  of  being  a  bona  Jide  purchaser  for  value  without 
notice,  and  upon  that  the  plaintiffs  have  very  properly  not  takeu  issue, 
because  it  is  immaterial.  If  they  have  a  prior  claim  to  the  estate,  the 
question  whether  the  whole  transaction  between  the  father  and  pon  was 
a  sham  or  not  is  entirely  unnecessary  to  be  tried;  because  in  equity 
that  which  is  prior  in  time  is  better  in  title.  If  the  plaintiffs  are  right 
they  will  therefore  be  entitled  to  judgment  as  against  James  Talfourd 
Mackenzie.  As  far  as  he  is  concerned  there  is  no  doul)t  about  giving 
what  they  claim.  Tiiey  are,  in  fact,  ptu-chasers,  through  William 
Franks  Mackenzie,  their  agent,  and  to  give  them  what  they  claim 
seems  to  be  a  matter  of  course.' 

1  am  of  opinion  that  the  defendant,  William  Franks  Mackenzie,  ought 
to  pay  the  costs  of  the  litigation.  The  order  as  to  costs  will  go  against 
both  defendants.'^ 

'  Tlio  rost  of  ihf  opiiiinn,  in  wliirli  iho  Ifsvriiod  jtulLjo  (Iccidod  that  tlio  ajjciit  coulil 
not  »ot  lip  the  Statute  of  Frauds  td  defeat  tlio  jjlaiiitiff'H  cdaiin,  is  omitted,  as  well  as 
the  arKiimciitfl  of  connHcl.  —  Kd. 

2  M(.(.n!  V.  .lerviH,  2  Ci>\\.  00;  Emiidon  v.  Brandon,  7  D.  M.  &  G.  30.5;  Cory  r. 
Eyro,  I  I).,  J.  &  S.  149;  A'e  Kurofif.ui  Hank,  L.  U.  5  Cli.  Aji.  .S.^H;  Cowdiey  ;•. 
Vati<lon))urKli.  101  U.  S.  572  {sewhle) ;  Hohcson  v.  Roberts,  20  Ind.  155.  101  ;  Sim.s 
V.  Wilswn.  47  Ind. '228;  Snmmors  r.  Hnfnon,  48  Ind.  228;  KaMtncr  r.  riliilinski, '.)6 
Ind.  22'.>;  Moore  /•.  .Moore,  112  Ind.  140  ;  AnicH  r.  KiclianlHon,  2'.)  Minn  ."J.'JO  ;  Turner 
r.  Iloyle,  95  Mo.  337;  Jolnmoii  Co.  v.  Boyden,  27  Mo.  Ap.  341;  (lint  hco  amtro, 
finrland  v.  HarriHos.  17  Mo.  282  ;  )  Staffonl  v.  Van  IfenHHelaer,  Hopk.  500  ;  0  Cow. 
816,  8.  c;    liusli  i;.  Lathrop,  22  N.  Y.  535  (semWe)  ;  bcliafer  v.  Kcilly,  50  N.  Y.  61 


310  CAVE  V.   MACKENZIE.  [cHAP.  IIL 

{semhh)  ;  Trustees  v.  ^Vllcclo^,  Gl  N.  Y.  88  ;  Greeue  v.  ■Warnick,64  N.  Y.  220  ;  Delan- 
cej  V.  Steams,  66  N.  Y.  157  ;  Crano  v.  Turner,  67  N.  Y.  437  ;  Keid  v  Sprague,  72  N. 
Y.  45"  (sembl.') ;  Westhrook  r.  Glcason,  79  N.  Y.  23  ;  Docker  i-.  Kok-o,  83  N.  Y  215  ; 
SimpsoH  V  Del  Hoy,  94  N  Y.  689  (sewWc) ;  FairNaiiks  v.  Sargent,  104  NY.  108; 
(but  see  contra,  Murray  v.  Lylburn,  2  Johns.  Ch.  441,  and  Liviugstou  v.  Dean,  2  Johus. 
Ch.  470,  per  Mr.  Chancellor  Kent;  James  i'.  Morey,  2  Cow.  247,  297;)  Downer  v. 
South  Hoyaltou  Bank.  39  Vt.  25  Arconl. 

But  see  contra,  Nat.  Bank  r.  Texas,  20  Wall.  72,  89  ;  Porter  v.  King,  1  Fed.  Rep. 
755  {semble)  ;  Olds  v.  Cummings,  31  111  188,  192  {semble)  ;  Sumner  v.  Waugh, 
6  111.  531,  538  (semble):  Silverman  i:  Bullock,  98  III  11;  Crosby  v.  Tanner,  40 
Iowa,  136;  Ohio  Co.  v.  Rees,  2  Md.  Ch.  25,  37  {semble);  Bloomer  v.  lieudersou, 
C  Mich.  395  (see  Terry  v,  Tuttle,  24  Mich.  214);  Hibernian  Bank  v.  Evermau, 
52  Miss.  500  (semble) ;  Losey  v.  Simpson,  3  Stockt.  246;  Woodruff  v.  Depue,  1 
McCart.  168  ;  Shannon  !•,  Marselis,  Saxt.  413  ;  lieilly  i'.  Mayer,  1  Beas.  55  ;  Lavallette 
t;.  Thomson,  2  Beas  274  ;  Starr  i*.  Haskins,  26  N.  J.  Eq.  414  ;  De  Witt  v.  Van  Sickles. 
29  N.  J.  Eq  209  (semble)  ;  Grocer's  Bank  v.  Neet,  29  N.  J.  Eq.  449  (semble) ;  Trapha- 
gen  V.  Hand,  36  N.  J  Eq.  384  ,  (but  see  s.  c  38  N.  J.  Eq.  613;  and  Conover  v  Van 
Mater,  18  N.  J.  Eq  481;)  Mott  v.  Clarke,  9  Barr,  399  ;  McConnell  v.  Wenrich,  16  Pa. 
365  ,  Hendrickson's  Appeal,  24  Pa.  363  ;  Wethrill's  Appeal,  3  Grraut,  281 ,  Pryor  u.Wood, 
31  Pa.  142  ,  Mnllison's  Est.ate,  68  Pa.  212,  216  ;  Kountz  v.  Kirk])atrick,  72  Pa.  376,385  ; 
Appeal  of  Milliin  Bank,  98  I'a.  150;  Moore  *;.  llolcomhe,  3  Leigh,  597  (semble)  ;  Gor- 
don V.  Bixey,  76  Va.  694  ;  Stoner  v.  Harris,  81  Va.  451  ;  Kellogg  v.  Fanciier,  24  Wis. 
21.  Most  of  the  preceding  cases  contra  were  founded  upon  certain  dicta  of  Mr.  Chan- 
cellor Kent  in  Jlurray  v.  Lylljurn,  2  Johns.  Ch.  441,  and  Livingston  v.  l^ean,  2  Johns. 
Ch.  479  (see  also  James  v.  Morey,  2  Cow.  247,  297)  ;  but  these  dicta  have  been  ex- 
pressly repudiated  in  New  York.     See  cases  cited  supra  in  the  preceding  paragraph. 

Plrch.vsi;  from  the  Fraudulent  Assignee  of  a  Chose  in  Action.  —  If  the 
owner  of  a  chose  in  action  is  induced  by  fraud  to  assign  the  same  in  writing,  and  the 
fraudulent  assignee  .os.signs  in  turn  to  an  innocent  purchaser,  the  defrauded  assignor  is 
postponed  to  the  purchaser.  Asliwin  v.  Burton,  32  L.  J.  Ch.  196  ;  Colonial  Bank  y. 
Cady,  1.5  App.  Cas.  267  (semble)  ;  Pochin  v.  Kobinous  (Court  of  Session  1 8G9),  7  R.  622  ; 
Talty  V.  Freedman's  Co.,  93  U.  S.  321  (semble)  ;  Cowdreyy  Vaudenburgh,  101  U.  S.  572 
(semble) ;  Adams  v.  District,  17  Ct.  CI.  351  ;  Ambrose  v.  Evans,  66  Cal.  74,  Arnold  ?'. 
Johnson,  66  Cal  402  ;  Otis  v  Gardner,  105  111.  4.36  ;  Campbell  v.  Brackenridge,  8  Blackf. 
471  (semble)  ;  Moore  v-  Moore,  112  Ind.  199  ;  Plummer  v.  People's  Bank,  65  Iowa,  405  ; 
Eversole  v.  Maule,  50  Md  95;  Cochran  v.  Stewart,  21  Minn.  435  ;  Etheridge  y.  Galla- 
gher, 55  iliss.  458,  International  Bank  v.  German  Bank,  71  Mo  183  ;  Lea  v.  Turner, 
89  Mo  487;  Neuhoff  c.  O'Reilly,  93  Mo.  164,  Pu';nain  v.  Clark,  29  N.  J.  Eq.  412; 
Grocer's  Bank  v  Neet,  29  N.  J.  Eq.  449  ■  Moore  v.  Metropolitan  Bank,  55  N.  Y.  41  ; 
(compare  Merchants'  Bank  v  Living.ston,  74  N.  Y.  223;)  Combes  v.  Chandler,  33  Ohio 
St  178  ;  (but  see  Osborn  v.  McClelland,  43  Oh.  St.  5^84  ;)  Taylor  v  Gitt,  10  Barr, 428 
Liuuavd's  App,  34  Alb.  L.  J.  316;  (compare  Leiper's  App.  108  Pa.  377;)  State  Bank 
i;   Hiustings,  15  Wis  75. 

But  see  contra,  Cockell  r.  Taylor,  15  Beav.  103;  Barnard  y  Hunter,  2  Jur.  n.  8. 
1213;  Taliaferro  v.  First  Bank,  71  Md.  200,  214  (semble) ;  Poillon  v.  Martin,  1  Sandf. 
Ch.  5'<9;  Covell  v.  Tradesman's  Bank,  1  Paige,  131  ;  Bush  v.  Lathrop,  22  N.  Y.  535  ; 
Cutts  •.  Guild,  57  N.  Y.  229.  See  also  Donnell  o.  Thompson,  13  Ala.  440;  Blackman 
p.  Lehman,  63  Ala.  547. 

The  decisions  in  favor  of  the  purchaser  are  commonly  put  upon  the  ground  that  the 
defrauded  assignor  is  estopped  from  as.serting  his  ownership.  For  a  criticism  of  this 
doctrine  and  a  suggestion  of  a  more  satisfactory  ])rinci{)le  leading  to  the  same  result, 
pee  1  Harv.  L  Rev.  7-8.  If  the  first  a.ssignment  is  procured  by  duress  it  has  been 
thought  that  the  intimidated  assignor  should  prevail  against  the  innocent  purchaser. 
Barry  v.  Equitable  Society,  59  N.  Y.  587  (semhle) ;  see  also,  Whitridgei?.  Barry,  42  Md. 
140.  But  this  view  seems  unsound  1  Harv.  L,  Rev.  8  A  mere  bailment  of  a  chose 
in  .'iction,  without  a  written  assignment,  will  not  preclude  the  bailor  from  reclaiming  the 
chose  in  action  from  an  innocent  purchaser  from  a  l)ailee.  Midland  Co  v.  Hitchcock, 
37  N.  J.  Eij.  549.    See  alao  Combs  v.  Hodge,  21  How.  397.  —  Eu. 


SECT.  I.]  CAVE  V.   CAVE.  311 


CAVE  V.   CAVE. 

In  Chancery,  before  Sir  Edward  Fry,  J.,  April  20,  23,  1880. 

[Reported  in  15  Chancery  Division,  639.] 

The  plaiutiflfs  were  the  cestuis  que  trust  under  the  settlement  executed 
on  the  marriage  of  Mr.  and  Mrs.  Frederick  Cave  on  the  27th  of  Januar}^ 
1863.  On  the  27th  of  November,  1867,  the  defendant  Charles  Cave 
was  appointed  trustee  of  the  settlement,  and  in  the  year  1871  he  be- 
came the  sole  trustee. 

The  trust  funds,  which  were  at  that  time  in  his  hands,  consisted  of 
£3,600  advanced  on  mortgage  and  £276  consols.  Out  of  these  sums 
£1,950  and  £702  17s.  6d.  were  improperly  invested  in  the  purchase  of 
certain  lands  at  Wandsworth  in  the  following  manner :  — 

Charles  Cave,  the  trustee,  received  the  trust  moneys  which  had  been 
secured  on  mortgage  in  1872,  and  paid  it  to  an  account  in  the  National 
and  Provincial  Bank  in  the  joint  names  of  himself  and  his  brother  Fred- 
erick Cave.  A  cheque  was  drawn  on  this  account  in  June,  1872,  by  the 
two  in  favor  of  Frederick  Cave,  and  the  money  was  laid  out  in  the  pur- 
chase of  freehold  laud  at  AVaudsworth.  Charles  Cave  acted  in  the  pur- 
chase as  trustee  of  the  settlement  and  also  as  solicitor  of  himself  and 
of  Frederick  Cave,  and  the  conveyance  of  the  property  was  made  to 
Frederick  Cave,  and  the  deeds  relating  to  the  property  were  held  by 
Charles  Cave,  the  trustee  of  the  settlement. 

In  September,  lbl2,  another  cheque  was  drawn  by  Charles  Cave  and 
Frederick  Cave  on  their  banking  account  in  favor  of  the  Accountant- 
General  of  the  Court  of  Chancery,  and  the  proceeds  were  applied  in 
purchasing  other  land  at  Wandsworth,  and  the  conveyance  of  tlie  land 
was  prei)ared  by  Charles  Cave,  and  was  made  to  Frederick  Cave. 

The  defendant  riuiip  Chaplin,  on  the  10th  of  Fel)ruary,  1873,  ad- 
vanced to  Frederick  Cave  £2,500  on  a  first  mortgage  of  the  land  thus 
im|)roperly  purchased,  which  contained  absolute  covenants  for  title  by 
Fredcricii  Cave.  Charles  Cave  acted  as  tlie  solicitor  of  Philip  Chaplin  in 
relation  to  tlie  said  advance,  and  stated  that  the  land  belougod  to  one 
of  his  hnnhers,  and  tlie  (picstion  arose  wiietiier  Phihp  CiKii)lin  iiad  or 
iiad  not  constructive  notice  through  Charles  Cave  who  so  acted  as  his 
solicitor,  that  tlie  said  lands  had  been  purchased  with  and  represented 
the  trust  moneys  subject  to  the  trusts  of  the  settlcnie'iit. 

In  October,  187."5,  the  defendant  .lohn  White  advanced  £1,.S00  on 
the  same  property  without  noti(;e  of  the  first  mortgage,  and  on  this  oc- 
casion Charles  Cave  wrote  a  letter  to  Mr.  White  stating  that  Frederick 
Cave  had  lately  bought  the  freehold  house  and  land  at  Wandsworth, 
which  had  coini)elled  hiin  to  withdraw  some  of  his  capital  from  his 
bufiiiiess. 

The  other  defendants,  W.  Nichols  and  Ilaslam,  Apploton,  &  Com- 
pany, also  advanced  money  on  subsequent  mortgages  of  the  same  laud 


312  CAVE   V.    CAVE.  [CIIAP.  III. 

to  Frederick  Cave,  and  iu  1874  Philip  Chaplin,  the  first  mortgagee,  made 
further  iulvances  ou  the  same  security. 

In  187J>  Frederick  Cave,  who  had  been  in  business  with  George  Cave, 
dissolved  partnership  upon  the  terms  of  his  paying  to  George  Cave 
£5,000,  £2,250  of  which  was  secured  by  a  mortgage  of  the  same 
lands.  In  this  case,  however,  Mr.  Justice  Fry  was  of  opinion  that 
George  Cave  had  actual  notice  of  the  breach  of  trust. 

In  April,  187U,  Frederick  Cave  became  a  bankrupt,  and  the  plain- 
tiffs claimed  to  prove  against  his  estate  for  these  breaches  of  trust,  and 
they  also  claimed  priority  over  all  the  liens  claimed  on  the  laud  by  the 
several  defendants,  on  the  ground  that  when  they  took  their  charges 
they  had  constructive  notice  of  the  breach  of  trust. 

The  defendants  denied  that  they  had  notice,  and  relied  especially  ou 
the  fraud  of  Charles  Cave  as  a  circumstance  raising  a  presumption  that 
he  would  not  have  communicated  the  circumstances  of  his  fraud  to  the 
mortgagees. 

Cookson,  Q.  C,  and  Everitt^  for  the  plaintiffs. 

Fischer,  Q.  C,  and  TF.  M.  Cochran,  for  the  first  mortgagee,  Philip 
Chaplin. 

Warmington,  for  a  subsequent  mortgagee.* 

Fry,  J.,  stated  the  facts,  and  continued :  — 

The  question  before  me  concerns  the  priority  of  the  liens  or  charges 
claimed  against  the  Wandsworth  property.  The  plaintiff's  right  to  a 
charge  against  the  original  purchaser  of  the  property,  Frederick  Cave, 
is  not  and  could  not  be  in  dispute.  The  question,  however,  arises  be- 
tween persons  who  claim  subsequently  to  the  original  purchase  by  the 
trustee,  or  rather  by  Frederick  Cave,  who  obtained  the  money  from  the 
trustee. 

It  appears  that  after  the  two  conveyances  were  made  to  Frederick 
Cave  in  June  and  September,  1872,  Frederick  Cave,  in  February,  1873, 
mortgaged  the  property  to  the  defendant  Philip  Chaplin  for  the  sum  of 
£2,500,  and  subsequent  advances  were  made  b}'^  Chaplin  which  bring 
the  amount  in  all  up  to  £5,550.  "With  regard  to  the  last  of  those  ad- 
vances, the  sum  of  £550,  it  was  subsequent  to  Mr.  AVhite's  advance, 
and  it  has  not  been  contended  that  it  can  have  priority  over  that.  Be- 
tween the  plaintiff  and  Chaplin  the  course  of  argument  has  been  this  : 
It  has  been  proved  that  the  same  solicitor,  Mr.  Charles  Cave,  who  was 
also  surviving  trustee,  acted  in  the  matter  of  Chaplin's  mortgage  both 
for  Chaplin  and  for  the  mortgagor,  Frederick  Cave. 

The  conclusion  I  arrive  at  is,  that  Chaplin  has  sustained  the  burden 
cast  upon  him  of  proving  that  the  circumstances  are  such  as  repel  the 
--•onstruction  or  imputation  to  the  principal  of  notice  to  the  agent. 
Therefore  I  hold  that  Mr.  Chaplin's  mortgage  has  a  priority  over  the 
plaintiffs'. 

^  The  argtiments  of  counsel  are  omitted  too;ether  with  a  part  of  the  opinion  relating 
to  the  question  of  constructive  notice  to  Chaplin.  —  Ed. 


SECT.  I.]  CAVE  V.   CAVE.  313 

The  next  question  arises  between  the  plaintiffs  and  White,  and  also 
between  all  the  other  iucumbraucers  upon  the  fund.  That  question  is 
of  this  nature  :  all  these  incumbrancers  allege  that  they  are  purchasers 
for  value  without  notice,  and  they  plead  that,  being  purchasers  for 
value  without  notice,  they  have  a  sufficient  and  conclusive  defence. 
That  defence,  as  we  all  know,  has  been  the  subject  of  a  great  deal  of 
decision,  and  it  is  by  no  means  easy  to  harmonize  the  authorities  and 
the  opinions  expressed  upon  tiie  subject.  Criticisms  upon  old  cases 
lie  many  strata  deep,  and  eminent  Lord  Chancellors  have  expressed 
diametrically  opposite  conclusions  upon  the  same  question.  The  case 
of  Phillips  V.  Phillips  is  the  one  which  has  been  principally  urged  be- 
fore me,  and  that,  as  being  the  decision  of  a  Lord  Chancellor,  is  binding 
upon  me,  notwithstanding  the  subsequent  comments  upon  it  of  Lord 
St.  Leonards  in  his  writings.  That  case  seems  to  me  to  have  laid  down 
this  principle,  that,  as  between  equitable  interests,  the  defence  will  not 
prevail  where  the  circumstances  are  such  as  to  requu'e  that  this  Court 
should  determine  the  priorities  between  them.  The  classes  of  cases  to 
which  that  defence  will  apply  are  other  than  that.  Lord  Westbury  iu 
the  course  of  his  judgment  in  that  case  said  this  :  "  I  take  it  to  be  a 
clear  proposition  that  every  conveyance  of  an  equitable  interest  is  an 
innocent  conve^'ance,  that  is  to  say,  the  grant  of  a  person  entitled 
merely  in  equity  passes  only  tliat  which  he  is  justly  entitled  to  and  no 
more.  If,  therefore,  a  person  seised  of  an  equitable  interest  (the  legal 
estate  being  outstanding),  makes  an  assurance  by  way  of  mortgage,  or 
grants  an  annuity,  and  afterwards  conveys  the  whole  estate  to  a  pur- 
chaser, he  can  grant  to  the  purchaser  that  whicli  he  has.  namely,  the 
estate  subject  to  the  mortgage  or  annuity,  and  no  more.  The  subse- 
quent grantee  takes  only  that  which  is  left  in  the  grantor.  Hence 
grantees  and  incumbrances  claiming  in  equity  take  and  are  ranked  ac- 
cording to  tlie  date  of  their  securities,  and  the  maxim  applies,  '  Qui 
prior  est  tempore  potior  est  jure.'  The  first  grantee  is  potior  —  that  is, 
potentior.  He  has  a  better  and  superior —  because  a  prior  —  equity." 
His  Lordship  then  proceeded  to  explain  the  different  classes  of  cases 
in  which  that  defence  is  availal)le,  and  the  one  which  has  been  relied 
upon  as  bringing  tlic  case  of  tlie  defendants  within  the  decision  of  Lord 
Westbury  is  the  third  class,  which  is  tiiis,  that  "  where  there  arc  cir- 
cumstances that  give  rise  to  an  equity  as  distinguislicd  from  an  equi- 
table estate —  as,  for  example,  an  equity  to  set  aside  a  deed  for  fraud, 
or  to  correct  it  for  mistake  —  and  Ihc  purchaser  under  the  instrument 
maintains  the  plea  of  i)urch:is<'  for  valuable  consideration  without  no- 
tice, the  Court  will  not  interfere." 

Now  the  question  I  have  to  determine  is  this,  is  the  right  of  the  par- 
ties to  follow  this  money  into  the  land  an  equitable  estate  or  interest, 
or  is  it  an  equity  as  distinguished  from  an  equitalde  estate  ?  The  deci- 
sion of  Lord  KIdon  many  years  ago  appears  to  me  to  bo  perfectly  con- 
clusive upon  the  law.    1  refer  to  the  caHc  of  Lewis  v.  Madocks,'  where 

1  17  Ves  48,  57. 


314  CAVE   V.    CAVE.  [CHAr.  IIL 

on  further  consideration  directions  had  been  given  for  an  inquiry  as  to 
certain  trust  moneys  which  had  gone  into  hind,  tlie  wife  chiiniiug  an  in- 
terest in  the  hind  as  against  the  lieir  ;  and  Lord  Eldou  said  this  :  "  The 
claim  of  the  wife  is  put  in  this  way,  that  personal  property  bound  by 
the  trust  or  obhgation,  whatever  it  is  called,  of  this  bond  is  traced  into 
the  purchase  of  a  real  estate,  which  estate  must  therefore  be  hers  ;  but 
1  do  not  know  auy  case  in  its  circumstances  sulhciently  like  this  to 
authorize  me  to  hold  that  doctrine.  I  am  prepared  to  say  that  the  per- 
sonal estate  bound  by  this  obligation,  and  which  has  been  laid  out  in 
this  real  estate,  is  personal  property  that  may  be  demanded  out  of  the 
real  estate  ;  that  the  estate  is  chargeable  with  it ;  but  it  was  not  so 
purchased  with  it,  that  the  estate  should  be  decreed  to  belong  not  to 
the  heir  but  to  the  wife."  In  other  words,  his  Lordship  held  that  the 
estate  descended  to  the  heir  subject  to  the  charge.  That  charge  ap- 
pears to  me  to  be  a  charge  in  equity,  or,  in  other  words,  an  equitable 
estate  or  interest.  Very  similar  was  the  question  which  Vice  Chancel- 
lor Kiudersley  had  to  determine  in  the  case  of  Rice  v.  Rice.^  He  had 
there  to  adjudicate  between  two  equities,  one  arising  from  the  right 
of  an  unpaid  seller  to  come  upon  the  land,  and  the  other  arising  by 
contract  creating  an  equitable  mortgage.  It  is  a  very  leading  and  in- 
structive case,  in  which  the  Vice  Chancellor  considered  very  fully  the 
application  of  the  maxim,  "  Qui  prior  est  tempore  ^wtior  est  jure"  and 
laid  it  down  thus  :  "To  lay  down  the  rule  with  perfect  accuracy,  I 
think  it  should  be  stated  in  some  such  form  as  this.  As  between  per- 
sons having  only  equitable  interests,  if  their  equities  are  in  all  other 
respects  equal,  priority  of  time  gives  the  better  equity,  or,  '  Qui  irrior 
est  tempore  jyotior  est  jure.'  "  He  then  went  on  to  consider  and  weigh 
the  two  equities  set  one  against  the  other  in  that  suit,  and  then  he 
says  :  "Each  of  the  parties  in  controversy  has  nothing  but  an  equita- 
ble interest ;-  the  pbintiff's.  interest  being  a  vendor's  lien  for  unpaid 
purchase-money,  and  the  defendant  Ede  having  an  equitable  mortgage. 
Looking  at  these  two  species  of  equitable  interests  abstractedly  and 
"without  reference  to  priority  of  time,  or  possession  of  the  title  deeds, 
or  any  other  special  circumstances,  is  there  anything  in  their  respective 
natures  or  qualities  which  would  lead  to  the  conclusion  that  in  natural 
justice  the  one  is  better  or  more  worthy  or  more  entitled  to  protection 
than  the  other?  Each  of  the  two  equitable  interests  arises  out  of  the 
forbearance  by  the  party  of  money  due  to  him.  There  is,  however, 
this  difference  between' them,  that  the  vendor's  lien  for  unpaid  pui-- 
chase-money  is  a  right  created  by  a  rule  of  equity  without  any  special 
contract;  the  right  of  the  equitable  mortgagee  is  created  by  the  special 
contract  of  the  parties.  I  cannot  say  that  in  my  opinion  this  consti- 
tutes any  sufficient  ground  of  preference,  though,  if  it  makes  any 
difference  at  all,  I  should  say  it  is  rather  in  favor  of  the  equitable 
mortgagee,  inasmuch  as  there  is  no  constat  of  the  right  of  the  vendor 
to  his  lien  for  unpaid  purchase-money  until  it  has  been  declared  by  a 

1  2  Drew.  73. 


SECT.  I.]  CAVE   V:    CAVE.  315 

decree  of  a  Court  of  Equity,  whereas  there  is  a  clear  constat  of  the  equi- 
table mortgagee's  title  immediately  on  the  contract  being  made.  But 
I  do  not  see  in  this  any  sufficient  ground  for  holding  that  the  equitable 
mortgagee  has  the  better  equity." 

In  my  judgment,  the  right  of  a  vendor  for  the  unpaid  purchase- 
money  is  an  equitable  lien,  and  the  right  of  the  cestuis  que  trust,  whose 
trust  money  has  been  invested  in  the  lands,  is  also  an  equitable  lien. 

1  do  not  think  I  can  really  distinguish  this  equity  from  such  an  equi- 
table lien  as  the  Vice  Chancellor  held  to  be  in  that  case  an  equitable 
estate  or  interest  of  the  same  description  as  the  equity  of  an  equitable 
mortgagee.  Therefore,  I  shall  conclude  that,  within  the  case  of  Phil- 
lips V.  Phillips,  the  interest  of  the  plaintiff  in  this  case  is  an  equitable 
interest,  and  not  merely  an  equity  like  the  equity  to  set  aside  a  deed, 
and  therefore  it  must  take  its  priority  according  to  the  priority  ol 
date.^ 

1  Danbeny  v.  Cockburn,  1  Mer.  62fi ;  Re  Vernon,  33  Ch.  Div.  402 ;  32  Ch.  D.  165 
(semble) ;  Carritt  v.  Real  Co.,  42  Ch  D.  263  Accord. 

Sturge  V.  Starr,  2  M.  &  K.  195 ;  Lane  v.  Jackson,  20  Beav.  535 ;  Penny  v.  Watts, 

2  De  G.  &  Sm.  501  ;    Re  Ffrench's  Est.,  21  L.  R.  Ir.  283,  Contra.  — Ed. 


316  NOTE.  [CIIAP.  III. 


NOTE. 

WHEN  TRUST  PROPERTY  TS  INCLUDED  IN  A  GENERAL  CON- 
VEYANCE  OR   DEVISE   BY   A   TRUSTEE. 

Whether  a  general  conveyance  or  devise  by  a  trustee  is  confined  in  its  operation 
to  property  in  which  the  trustee  has  a  beneficial  interest,  or  includes  also  property 
held  by  Iiini  simply  as  trustee,  is  a  question  of  iutoution  to  be  gathered  from  the  whole 
scope  of  tlie  deed  or  will. 

Conveyance  inter  vivos.  —  In  Fausset  v  Carpenter,  5  Bligh,  n.  s.  75  ;  2  Dow  & 
CI.  232,8.  c. ;  Anderson  v.  Raikes,  1  Stark.  155;  Abbot,  55  Me.  580,  it  was  decided 
tliat  the  legal  title  to  trust  property  did  not  pass  by  a  general  conveyance  by  the 
trustee.  This  interpretation  was  adopted  upon  the  ground  that  an  intention  to  com- 
mit a  breach  of  trust  should  not  be  imputed  to  the  trustee  without  express  evidence 
of  such  an  intention.  I'he  case  of  Fausset  v.  Carpenter  is  criticised,  however,  with 
some  severity  in  Sugden's  Law  of  Property,  76. 

Wills.  —  On  the  other  hand,  the  lejial  title  to  trust  property  will  pass  by  a  general 
devise  by  the  trustee,  unless  the  will  discloses  an  intention  to  restrain  its  operation  to 
property  in  which  the  testator  had  a  beneficial  interest.  Marlow  v.  Smith,  2  P  Wms. 
198  ;  Ex  parte  Sergison,  4  Yes.  147  (semble) ;  Braybrooke  v.  Inskip,  8  Ves.  417  (over- 
ruling Attorney-General  v.  Buller,  5  Ves.  339);  Ex  parte  Shaw,  8  Sim.  159;  Bain- 
bridge  V.  Ashburton,  2  Y.  &  C.  Ex.  347  ;  Sharpe  v.  Sharpe,  12  Jur.  598;  Langford  v 
.\uger,  4  Hare,  313;  Lewis  v.  Mathews,  L.  R.  2  Eq.  177  ;  Taylor  ?:.  Benham,  5  How. 
2.33,270,  Richardson  v.  Woodbury,  43  Me  206  {semble);  Ballard  v.  Carter,  5  Pick 
112  (semble)  ;  Cooper  v.  Cooper,  1  Hal.  Ch.  9;  Wills  v.  Cooper,  1  Dutch.  137  (semble); 
Jackson  v.  Delancy,  13  Johns  537 ;  Merritt  v.  Farmers'  Co.,  2  Edw  547  (semble) ; 
Heath  v.  Knapp,  4  Barr,  228. 

Any  disposition  of  the  property,  however,  which  would  be  improper  unless  the 
testator  had  the  beneficial  interest  therein,  is  sufficient  to  exclude  trust  property  from 
the  operation  of  the  will ;  e.  g. .  — 

A  Devise  subject  to  Debts,  Annuities,  or  Legacies.  —  Reade  v.  Reade,  8  T.  R.  118  ;  Ex 
parte  Morgan,  10  Ves.  101  ;  Rackham  v.  Siddall,  16  Sim.  297  ;  1  McN  &  G.  607,  8.  c. , 
Doe  V.  Lightfoot,  8  M.  &  W.  553  (semble) ;  Hope  v.  Liddell,  21  Beav.  183  ;  Life  As.so- 
ciation  v.  Siddal,  3  D.,  F.  &  J.  58  ;  Re  Smith's  Estate,  4  Ch.  D.  70 ;  Re  Bellis's  Trusts, 
5  Ch.  D.  504  (impugning  Re  Brown,  3  Ch.  D.  156,  contra). 

A  DejnsejifiSin_Trust  to  sell.  —  Ex  parte  Marshall,  9  Sim.  555;  Re  Morley's  Will,  10 
Hare,  293  ,  Re  Packnian,  1  Ch.  D.  214  ;  Re  Smith's  Estate,  4  Ch.  I).  70  ;  Surrey  Co.  v. 
Kerr,  W.  N.  (1878),  163  (but  see  Wall  v.  Bright,  1  J.  &  W.  494,  criticised  in  Lysaght 
V.  Edwards,  2  Ch.  D.  499) ;  Richardson  v.  Woodbury,  43  Me.  206  ;  Merritt  v.  Farmers' 
Co.,  2  Edw.  547  ;  Nightingale  v.  Nightingale,  13  R.  I.  113. 

A  Devise  l»-iiePefaras  Tenants  in  Common.  —  Martin  r.  Laverton,  L  R.  9  Eq.  563, 
568  (semble).  See  Doe  v.  Lightfoot,  8  M.  &  W.  553  ;  Re  Morley's  Will,  10  Hare,  293 ; 
Re  Finney's  Estate,  3  Giff.  465  ;  Thirtle  v.  Vaughan,  2  W.  R.  632  ;  24  L.  Times,  5,  s.  c 

A  Devise  to  Several  Persons  with  a  Right  of  Accruer.  —  Thirtle  v.  Vaughan,  2  W.  R. 
632 ;  24  L.  Times,  5,  8.  c.  See  also  Ex  parte  Brettell,  6  Ves.  576  (explained  in  8  Ves. 
434). 

A  Devise  to  an  Unascertained  Class-  —  Re  Finney's  Estate,  3  GifiE  465. 

A  Devise  to  the  Separate  Use  of  a   Woman.  — Lindsell  v.  Thacker,  12  Sim.  178. 

A  Devise  in  Strict  Settlement.  — Thompson  v.  Grant,  4  Mad  438. 

A  Devise  to  the  Cestui  que  Trust  being  an  Infant  —  Wills  v.  Cooper,  1  Dutch.  137. 

General  Convevakce  or  Devise  by  a  Mortgagee  — The  legal  title  to  mort- 
gaged property  will  of  course  pass  by  a  general  conveyance  or  devise  by  the  mort- 
gagoe,  unless  a  contrary  intention  appears  by  the  deed  or  will.    Sir  Thomas  Littleton's 


SECT.  I.]  GIDDIXGS   V.    EASTMAN,  317 

Case,  2  Vent  351  ,  Ex  parte  Bowes,  1  Atk.  605,  n  1  ;  Ballard  v.  Carter,  5  Pick  112. 
Furthermore,  as  a  mortgagee,  unlike  a  trustee,  has  a  beneficial  mterest  in  the  property, 
the  legal  title  will  pass  notwithstanding  the  property  is  conveyed  or  devised  subject  to 
a  charge  for  the  payment  of  debts,  legacies,  or  annuities  Wynn  v.  Littleton,  1  Veru. 
3;  1  Atk  605,  n.  1,  s.  c,  ;  Re  Stevens,  L.  R  6  Eq  597;  Lewin,  Trusts  (7th  ed),  209, 
210  See  also  Re  Smith's  Estate,  4  Ch.  D.  70,  72.  But  see  contra,  Doe  v  Lightfoot,  8 
M-  &  W.  553 ,  1  Jarman,  Wills  (4th  ed  ),  701. 

In  the  following  cases  the  terms  of  the  will  were  thought  to  be  inconsistent 
with  an  intention  of  the  mortgagee  to  dispose  of  the  legal  title  to  tlfe  mortgaged 
property ;  e.  g.  :  — 

A  Limitation  of  the  Properti/  in  Strict  Settlement  — Braybrooke  v.  Inskip,  8  Ves. 
434  (semble);  Thompson  v  Grant,  4  Mad.  438;  Galliers  v.  Moss,  9  B  &  G.  267  (but 
see  Ex  parte  Bowes,  1  Atk.  605,  n.  1). 

A  Devise  to  an  Unascertained  Class  — Re  Finney's  Estate,  3  Giff.  465. 

A  Devise  upon  Special  Trusts.  —  Re  Horsfall,  McCl.  &  Y.  292 ;  JMartin  v.  Laverton, 
L  R.  9  Eq  563  ;  Re  Packman,  1  Ch  D.  214.  See  also  Leeds  v.  Munday,  3  Ves.  Jr. 
348 ,  Breckinridge  v.  Waters,  4  Dana,  620. 

It  is  hardly  necessary  to  add,  that  when  the  legal  title  to  trust  property  passes  by 
the  will  of  the  trustee,  the  devisee  takes  the  same  subject  to  the  trust.  Marlow  v. 
Smith,  2  P.  Wma.  201  ,  Grenville  i-.  Blyth,  16  Ves.  231,  —Ed. 


X 


GIDDINGS   AND   COLEMAN  v.   EASTMAN   and  Wife. 

In  Chancery,  New  York,  before   R.  H.  Walworth,  C,  March 

15,  1831. 

[Reported  m  5  Paige,  561  ] 

This  was  an  appeal  from  a  decree  of  the  Vice  Chancellor.  The 
premises  in  controversy  were  conveyed  in  November,  1810,  to  C. 
Blanchard,  who,  however,  held  them  as  a  constructive  trustee  for  the 
complamants.  Blancliard  died  in  April,  1811,  intestate,  and  without 
issue,  leaving  his  sister  Abigail,  the  wife  of  the  defendant  Eastman, 
and  four  other  sisters,  his  heirs-at-law.  Eastman  purchased  the 
rights  of  his  four  sisters-in-law,  paid  them  therefor,  and  took  con- 
veyances from  them  without  any  notice  of  the  trust  in  favor  of  the 
comphiinants.' 

J.  C.  Spencer  for  the  complainants. 

F.  M.  Ilaifjht  for  the  defendants. 

The  Chancf.i.i.ou.  It  is  Insisted,  however,  by  the  complainants' 
counsel,  tiiat  as  Eastman  and  wife  hchl  an  undivided  share  of  the 
premises,  in  right  of  the  wife,  as  one  of  the  heirs-at-law  of  Hlauchard, 
charged  with  the  trust,  although  they  were  both  ignorant  of  the  fact 
that  any  such  trust  existed,  it  was  impossible  for  Eastman  to  become 
Abonajide  purchaser  of  the  undivided  shares  of  the  other  four  heirs-at- 

'  The  statement  of  the  caao  haa  been  much  abridged.  The  arguments  of  couasel 
are  omitted,  together  with  a  part  of  the  Chancellor's  opinion  —  Ed. 


318  THIRD   NATIONAL   BANK   V.    LANGE.  [CIIAP.  III. 

law.  Tills  position  cannot  be  sustained  upon  any  principle  of  equity. 
The  cases  referred  to  by  the  complainants'  counsel,  upon  this  point,  are 
cases  in  which  a  trustee  holding  the  estate  for  auothcr  has  taken  ad- 
vantage of  bis  situation  to  purchase  in  an  outstanding  title,  or  to  se- 
cure some  advantage  which,  in  equity,  it  was  his  duty  to  purchase  or 
secure  for  the  benefit  of  his  cestui  que  trust;  or  where,  from  the  situ- 
ation of  the  purchaser  in  reference  to  others,  it  might  be  presumed  he 
intended  to  make  the  purchase  for  his  and  their  joint  benefit.  But 
where  one  devisee  or  heir-at-law  is  by  construction  turned  into  a 
trustee  without  any  knowledge  on  his  part  that  he  is  such  trustee,  or 
of  the  facts  which  make  him  a  trustee  constructively,  it  appears  to  be 
impossible  to  hold  that  he  may  not  be  a  bona  fide  purchaser  of  the  un- 
divided share  of  another  tenant  in  common  in  the  same  property,  as 
to  which  he  is  equally  ignorant  that  any  trust  exists.  The  conclusion 
of  the  Vice  Chancellor  was  therefore  right,  that  Eastman  acquired  a 
valid  title  to  four-fifths  of  the  premises,  by  purchase  from  the  heirs, 
and  that  he  now  holds  that  portion  of  the  premises,  discharged  of  the 
trust  which  attached  to  it  in  the  hands  of  the  heirs. 

The  decree  appealed  from  is  affirmed,  with  costs ;  and  the  proceed- 
ings are  to  be  remitted  to  the  Vice  Chancellor.' 


THE  THIRD  NATIONAL  BANK  v.  JOHN  H.  LANGE  &  Others. 
In  the  Court  of  Appeals,  Maryland,  October  Term,  1878. 

[Reported  in  51 , Man/land  Reports,  138.] 

Appeal  from  the  Circuit  Court  of  Baltimore  City. 

This  was  a  proceeding  in  equity  by  the  appellee,  Lange,  against  the 
appellant  and  others,  to  enjoin  the  appellant  from  collecting  or  at- 
tempting to  collect  a  promissory  note,  purchased  by  it,  but  equitably 
belonging  to  the  appellee  Lange,  or  from  pi'otesting  it,  or  taking  any 
further  steps  in  regard  thereto.  The  injunction  ordered  to  be  issued, 
was  served  upon  the  appellant  three  days  before  the  maturity  of  the 
note.     The  case  is  further  stated  in  the  opinion  of  the  Court. 

The  cause  was  argued  before  Bartol,  C.  J.,  Brent,  Miller,  Alvey, 
and  Robinson,  JJ. 

1  For  instances  where  innocent  volunteers,  as  in  the  principal  case,  were  charged 
as  constractive  trustee^,  see  Pye  v.  George,  2  Salk.  680 ,  Mansell  v.  Mausell,  2  P.  Wms. 
678.  681  ;  Luttrell  v.  Olmius,  11  Ves.  638  (cited) ,  Eell  v.  Bell,  LI.  &  G.  44, 58 ;  Greiner 
I-  Greiner,  58  Gal  115,  123;  Hazletine  v.  Fourney,  120  II!.  493;  Dcrry  v.  Deny,  74 
Ind.  560  ,  Cobb  v.  Knight,  74  Me.  253  ;  Shaler  v.  Trowbridge,  28  N.  J.  Eq.  595  ;  Lyford 
1  Thurston,  16  N.  H.  399;  Savage  v  McCorkle,  17  Oreg.  42;  Kennedy  v.  Baker,  59 
Tex.  150;  Everett  i;  R.  R.  Co.,  67  Tex.  430.  — Ed. 


SECT.  I.]         THIRD  NATIONAL  BANK  V.    LAXGE,  319 

Henry  StocJcbridge,  for  the  appellant. 
Thomas  R.  Clendinen^  for  the  appellee  Lange. 

Albert  Ritchie,  for  the  appellees,  Flyun  «S:  Emerich  and  J.  Eegester 
&  Sons.^ 
Brent,  J.,  delivered  the  opinion  of  the  Court. 
The  note,  about  which  this  case  has  arisen,  is  as  follows : — 

SHOO.  Baltimore,  Fehy.  8th,  1876. 

Twelve  months  after  date  we  promise  to  pay  to  the  order  N.  W. 
"Watkins,  trustee,  eleven  hundred  dollars  with  interest,  value  received. 

Flynn  &  Emericu." 

The  names  of  "  N.  W.  Watkins,  Trustee,"  and  "J.  Eegester  & 
Sons,"  are  indorsed  upon  it. 

This  note  was  given  for  the  purchase  of  property  sold  by  N.  W. 
Watkins,  as  trustee  under  a  decree  of  the  Circuit  Court  of  Baltimore 
City,  and  is  for  one  of  the  deferred  payments,  as  authorized  by  that 
decree.  At  the  time  of  its  delivery  to  the  trustee,  it  was  indorsed  by 
J.  Regester  &  Sons  as  securities  for  the  drawers, —  the  terms  of  sale 
requiring  the  deferred  payments  to  be  secured  in  that  form. 

Subsequently  N.  W.  Watkins  wrote  above  the  names  of  J.  Regester 
&  Sons  the  indorsement  "  N.  W.  Watkins,  Trustee,"  and  applied  to 
the  Union  Banking  Company  to  buy  the  note,  offering  to  sell  it  for  12 
per  cent  off.  The  Banking  Company  not  being  willing  to  buy  it,  its 
cashier  offered  to  sell  it  for  Watkins,  and  placed  it  in  the  hands  of  a 
bill  broker  for  that  purpose.  After  getting  into  the  hands  of  a  second 
bill  broker  it  was  taken  by  him  to  the  Third  National  Bank,  the  appel- 
lant, and  offered  to  it  for  sale.  The  bank  bought  it  from  the  broker 
at  nine  per  cent  off,  and  the  proceeds  seem  to  have  been  appropriated 
by  Watkins. 

The  appellees  claim  that  the  bank  acquired  no  right  to  the  note, 
while  it  is  contended  for  the  bank  that  the  note  is  embraced  in  the 
class  of  commercial  paper,  and  was  acquired  by  it  in  a  usual  and 
proper  way. 

Without  intending  to  decide  upon  the  right  of  a  national  bank  to 
purchase  paper,  as  the  question  does  not  necessarily  arise  in  this  case, 
we  do  not  think  the  note  in  question  is  within  the  class  of  paper  known 
as  commercial  paper.  Although  like  it  in  general  form,  the  fact  that  it 
is  payaljle  to  the  order  of  Watkins,  trustee,  restricts  its  free  circulation, 
and  excepts  it  from  some  of  the  rules  governing  commercial  paper. 

No  doctrine  is  better  settled,  than  that  a  trustee  has  no  power  to  sell 
and  dispose  of  trust  property  for  his  own  use  and  at  his  own  mere  will. 
One  who  obtains  it  from  him  or  through  him  witli  actual  or  construc- 
tive notice  of  the  trust,  can  acquire  no  title,  and  it  may  be  recovered 
by  suitable  proceedings  for  the  benefit  of  tlic  cestui  que  trust.  If  there 
are  circumstances  connected  with  the  purchase  which  reasonably  indi* 

1  The  arguments  of  couDsel  are  omitted. — Ed. 


320  TIIIKD   NATIONAL   BANK   V.   LANGE.  [uHAP.  III. 

cate  that  trust  property  is  being  dealt  with,  they  will  fix  upon  the  pur- 
chaser uotice  of  iho  trust,  aud  if  lie  fails  to  make  inquiry  about  the 
title  he  is  getting,  it  is  his  own  fault  and  he  must  suffer  the  conse- 
quences of  his  own  neglect. 

The  general  doctrme  is  stated  in  1  Story's  Eq.  Juris.,  sec.  400,  where 
it  is  said:  "for  whatever  is  sufficient  to  put  a  party  upon  inquiry, 
(that  is,  whatever  has  a  reasonable  certainty  as  to  time,  place,  circum- 
stances, and  persons,)  is,  m  equity,  held  to  be  good  notice  to  bind 
him."  A  large  number  of  authorities  is  referred  to  in  the  note,  and  it 
is  unnecessary'  to  allude  to  them  more  particularly. 

In  the  case  of  the  present  note,  it  cannot  be  read  understandingly 
without  seeing  upon  its  face  that  it  is  connected  with  a  trust  and  is 
part  of  a  trust  fund.  It  was  the  duty  of  the  bank,  before  purchasing 
it,  to  have  made  inquiry  into  the  right  of  the  trustee  to  dispose  of  it. 
But  this  it  wholly  failed  to  do,  and  as  it  turns  out,  he  was  disposing  of 
the  note  in  fraud  of  his  trust,  the  bank  must  suffer  the  consequences 
of  the  risk  it  assumed. 

In  the  case  of  Shaw  v.  Spencer,  and  others,^  the  question  is  con- 
sidered, whether  the  addition  of  the  word  trustee  to  the  name  alone  is 
sufficient  to  indicate  a  trust  and  put  a  party  upon  inquiry.  That  was 
the  case  of  stock  certificates,  which  were  pledged  by  the  holder  as  col- 
laterals for  certain  acceptances.  The  certificates  in  question  were  in 
the  name  of  E.  Carter,  trustee.  They  were  by  him  indorsed,  and  one 
of  the  questions  presented  was  whether  the  word  trustee  was  sufficient 
to  put  the  holders  upon  inquiry,  and  thereby  affect  them  with  notice  of 
the  trust.  The  Court  says  on  page  393,  "The  rules  of  law  are  pre- 
sumed to  be  known  by  all  men  ;  and  they  must  govern  themselves 
Hccordingly.  The  law  holds  that  the  insertion  of  the  word  '  trustee ' 
after  the  name  of  a  stockholder  does  indicate  and  give  uotice  of  a  trust. 
No  one  is  at  liberty  to  disregard  such  notice  and  to  abstain  from  in- 
quiry, for  the  reason  that  a  trust  is  frequently  simulated  or  pretended 
when  it  really  does  not  exist.  The  whole  force  of  this  offer  of  evidence 
is  addressed  to  the  question,  whether  the  word  '  trustee '  alone  has 
any  significance  and  does  amount  to  notice  of  the  existence  of  a  trust. 
But  this  has  heretofore  been  decided,  and  is  no  longer  an  open  ques- 
tion in  this  commonwealth."  And  upon  the  ground  that  pledgees  took 
the  certificates  with  this  notice  of  the  trust,  it  was  held  that  they  could 
not  retain  them  against  the  equitable  owner,  inasmuch  as  Carter,  the 
trustee,  had  no  authority  to  use  or  dispose  of  them  for  any  such 
purpose. 

The  argument,  that  the  bank  should  not  be  deprived  of  its  action 
against  J.  Regester  &  Sons,  whose  indorsement  it  is  claimed  guaran- 
tees the  preceding  indorser,  would  be  entitled  to  weight  but  for  the 
facts  of  the  case.  While  the  rule  is  undoubted  that  a  subsequent  en- 
dorser guarantees  the  preceding  indorsement,  it  cannot  apply  to  a  case 

1  100  Mass.  382. 


SECT.  I.]         THIRD  NATIONAL  DANK  V.   LANGE.  321 

where  in  fact  there  was  no  previous  indorsement  at  the  time  of  the 
alleged  second  indorsement.  The  obligations  of  J.  Regester  &  Sons 
upon  this  note  were  those  of  original  makers,  Ives  v.  Bosley,^  Good 
V.  Martin,-  as  is  clearly  shown  by  the  proof  in  the  case.  Their  name 
was  placed  upon  the  note  as  security,  and  they  cannot  be  held  to  a 
contract  of  guaranty  into  which  they  never  entered.  That  parol  evi- 
dence is  admissible  to  show  the  character  in  which  they  stand  relative 
to  this  note  is  settled  by  the  Supreme  Court  of  the  United  States  in 
the  case  of  Good  v.  Martin,  just  referred  to. 

We  are  therefore  very  clearly  of  opinion,  that  the  bank  cannot  hold 
Regester  &  Sons  liable  as  guarantors.  When  the  note  is  paid,  their 
liability  ceases. 

We  find  no  error  in  the  decree  of  the  Court  below,  and  it  will  be 
affirmed. 

Decree  affirmed  with  costs,  and  case  remanded.^ 

1  35  Md.  263.  2  95  u.  S.  90. 

8  Sturtevant  v.  Jaques,  14  All.  523  Accord. 

A  fortiori  one  who  takes  a  conveyance  from  a  person  whose  name  is  followed  by  the 
word  "  trustee  "  in  the  document  of  title,  and  with  knowledge  that  he  is  making  tue 
conveyance  for  his  personal  advantage,  for  example,  to  satisfy  or  secure Jiis  own  debt, 
cannot  hold  the  property  against  the  defrauded  cestui  que  trust.  Bank  of  Montreal  v 
Sweeny,  12  App.  Cas.  617  ;  Duncan  v.  Jaudon,  15  Wall.  165;  Manhattan  Bank  v. 
Walker,  130  U.  S.  267  ;  Shaw  v.  Spencer,  100  Mass.  382  ;  Smith  v.  Burgess,  133  Mass. 
511  ;  Payne  v.  First  Bank,  43  Mo.  Ap.  377, 383  ;  Alexander  v.  Aldersou,  7  Baxt.  403.— 
Ed. 


322  CARrENTER   V.   CARPENTER,  [CHAP.  in. 


SECTION   I.  (continued), 
(b)  By  Act  of  the  Cestui  que  Trust. 

CARPENTER  v.   CARPENTER. 

WASBORNE  V.   DOWNES. 

In  Chancery,  before  Lord  Jeffreys,  C,  February  23,  1686. 

[Reported  in  1  Vernon,  440.] 

Ix  these  eases  it  was  resolved,  that  where  a  common  recovery  is 
suffered,  or  a  fine  levied  by  cestui  que  trust  in  tail,  it  shall  have  the 
same  effect,  and  avail  as  much  in  this  court,  and  bind  the  trust  in  the 
same  manner  as  the  same  would  the  estate  in  law  in  case  he  had  the 
legal  estate  in  him  ;  and  as  to  a  fine,  it  had  never  been  doubted  since 
the  case  in  the  Lord  Bridgman's  time.  And  it  has  been  held  by  some, 
that  even  a  bargain  and  sale  enrolled  by  cestui  que  tntst  of  an  estate 
tail  should  bind  the  issue,  in  regard  that  such  a  trust  is  not  within  the 
statute  de  donis.^ 

1  "  The  power  of  an  equitable  tenant  in  tail  to  dispose  of  the  equitable  fee  simple 
has  been  differently  viewed  at  different  periods.  At  common  law  all  inheritable 
estates  were  in  fee  simple,  and  it  was  the  statute  de  donis  («)  that  first  gave  rise  to 
entails  and  expectant  remainders.  As  this  statute  was  long  prior  to  the  introduction 
of  uses,  had  equity  followed  the  analogy  of  the  common  law  only,  a  trust  limited  to 
A.  and  the  heirs  of  his  body,  and  in  default  of  issue  to  B.  would  have  been  construed 
a  fee  simple  conditional,  and  the  remainder  over  would  have  been  void  ;  but  the  known 
legal  estates  of  the  day,  whether  parcel  of  the  common  law  or  ingrafted  by  statute, 
were  copied  without  distinction  into  the  system  of  trusts,  and,  equitable  entails  indis- 
putably existing,  {he  question  in  constant  dispute  was,  by  what  process  they  were  to 
be  barred.  After  much  fluctuation  {b)  it  was  finally  established  by  Lord  Hardwicke, 
that  as  entails  with  expectant  remainders  had  gained  a  footing  in  trusts  by  analogy  to 
the  statute  de  donis,  a  court  of  equity  was  bound  to  follow  the  analogy  throughout, 
and  therefore  that  a  tenant  in  tail  of  a  trust  could  not  bar  his  issue,  or  the  remainder- 
man, except  by  an  assurance  analogous  to  one  which  would  have  been  a  bar  had  the 
entail  been  of  the  legal  estate. 

"  The  doctrines  of  equity,  as  finally  settled  upon  this  principle,  were  as  follows  :  — 

"  1 .  For  a  good  equitable  recovery  there  must  have  been  an  equitable  tenant  to  the 
praecipe,  that  is,  the  beneficial  owner  (c)  of  the  first  equitable  freehold  must  necessarily 
have  concurred  (d). 

"  2.  An  equitable  recovery  was  a  bar  to  equitable  only,  and  not  to  legal  remain- 
ders (e). 

(a)   13  Ed.  l,8t.  l,c.  1. 

(6)   See  an  account  of  the  fluctuation  in  3d  ed.,  pp.  601-604. 

(c)    Penny  v.  Allen,  7  De  G.  M.  &  G.  425. 

id)  North  V.  Williams,  2  Ch.  Ca.  64,  per  Lord  Nottingham ;  Highway  v.  Banner, 
1  B.  C.  C.  586  ;  and  see  Wickham  v.  Wickham,  18  Ves.  418. 

(e)  Philips  V.  Brydges,  3  Ves.  128,  per  Lord  Alvanley;  Salvin  v.  Thornton,  Amb. 
585 ;  8.  c.  1  B.  C.  C.  73,  note. 


SECT.  I.]  DEARLE   V.    HALL.  323 


DEARLE  V.   HALL. 
In  Chancery,  before  Lord  Ltndhurst,  C,  December  24,  1828. 

[Reported  m  3  Russell,  48.] 

The  Lord  Chancellor.^  The  cases  of  Dearie  v.  Hall  and  Love- 
ridge  V.  Cooper  were  decided  by  Sir  Thomas  Plumer ;  and  from  his 
decree  there  is  in  each  of  them  an  appeal,  which  stands  for  judgment. 
As  the  two  cases  depend  on  the  same  principle,  though  the  facts  are,  to 
a  certain  degree,  different,  the  better  course  will  be  to  dispose  of  both 
together ;  and  as  Dearie  v.  Hall  was  the  first  of  the  two  which  came 
before  the  court  below,  though  it  was  not  argued  on  appeal  till  after 
Loveridge  v.  Cooper  had  been  heard,  I  shall  first  direct  my  attention 
to  the  facts  on  which  it  depends. 

Zachariah  Brown  was  entitled,  during  his  life,  to  about  £93  a  year, 
being;  the  interest  arising:  from  a  share  of  the  residue  of  his  father's 
estate,  which,  in  pursuance  of  the  directions  in  his  father's  will,  had 
been  converted  into  mone}',  and  invested  in  the  names  of  the  executors 
and  trustees.  Among  those  executors  and  trustees  was  a  solicitor  of 
the  name  of  Unthauk,  who  took  the  principal  share  in  the  management 
of  the  trust.  Zachariah  Brown,  being  in  distress  for  money,  in  con- 
sideration of  a  sum  of  £204,  granted  to  Dearie,  one  of  the  plaintiffs  in 
the  suit,  an  annuit}'  of  £37  a  year,  secured  by  a  deed  of  covenant  and 
a  warrant  of  attorney  of  the  grantor  and  a  surety  ;  and,  by  way  of 
collateral  security,  Brown  assigned  to  Dearie  all  his  interest  in  the 
yearly  sum  of  £93  :  but  neither  Dearie  nor  Brown  gave  any  notice  of 
this  assignment  to  the  trustees  under  the  father's jvill. 

Shortly  afterwards,  a  similar  transaction  took  place  between  Brown 
and  the  other  plaintiff,  Sherring,  to  whom  an  aiuiuity  of  £27  a  year 
was  granted.  The  securities  were  of  a  simUar  description  ;  and,  on 
this  occasion,  as  on  the  former,  no  notice  was  given  to  the  trustees. 

"3.  An  cquitahle  recovery  was  not  vitiated  by  tlic  circumstance  that  tlie  e(iuital)Io 
tenant  to  the  prmr.tpe  had  also  the  lee;al  freehold  (_/). 

"  4.  An  c(|uital)Io  remainder  was  well  barred,  though  it  was  vested  in  a  person  wlin 
had  also  the  h'gal  fee  (7). 

"  At  the  present  day,  by  the  operation  of  the  Fines  and  Recoveries  Act  (A),  the  e(|ui- 
table  tenant  in  tail  may  dispose  of  (')  tlie  eipiitable  fee  by  the  same  modes  of  assur- 
ance ami  1)V  the  same  formalities  as  if  h(!  were  tenant  in  tail  of  the  lojral  estate."  — 
Lewin,  Trusts  (9tli  ed.)  779-80.  —  Ed 

(/)  Philips  V  Bryrlgea,  3  Yea  120,  per  Lord  Alvanloy,  2  Ch  Ca.  40  ;  Marwood  1;. 
Turner,  3  V.  W.  171  ;  fJoodrick  v   Hrowii,  2  C\\.  Ca.  4'.)  ,  s.  r.  Freem.  IHO. 

(7)  Philips  V  J'.rydges,  3  Ves.  1^0,  Poliinson  i'.  Comyns,  Cas.  t.  Talb.  ICl,  s.  C.  1 
Atk.  172. 

(/i)    3  &  4  Will.  4,  c.  74. 

(1)  A  mere  declaration  of  trust  is  not  a  disposition  withiu  the  moaning  of  the  Acl« 
temble ;  Green  v.  ratcrson,  32  Ch.  Div.  95. 

*  See  supra,  p.  70,  n.  1.  —  Ed. 


324  DEARLE  V.   HALL.  [CIIAP.  IIL 

Tlicse  trnnsactions  took  place  in  1808  and  1809.  The  annuities  were 
regularly  paid  till  June,  ISll  ;  and  then,  for  the  first  time,  default  was 
made  iu  payment. 

Notwithstanding  this  circumstance,  Brown,  iu  1812,  publicly  adver- 
tised for  sale  his  interest  in  the  property  under  his  father's  will.  Hall, 
attracted  by  the  advertisement,  entered,  through  Ins  solicitor,  Mr. 
Patten,  into  a  treat}'  of  purchase ;  and  it  appears  from  the  correspond- 
ence between  Mr.  Patten  and  Mr.  Unthauk  that  the  former  exercised 
due  caution  in  the  transaction,  and  made  every  proper  inquiry  concern- 
ing the  nature  of  Brown's  title,  the  extent  of  any  incumbrances  affect- 
ing the  property',  and  all  other  circumstances  of  which  it  was  fit  that  a 
purchaser  should  be  apprised.  No  intimation  was  given  to  Hall  of  the 
existence  of  any  previous  assignment ;  and,  his  solicitor  being  satisfied, 
he  advanced  his  money  for  the  purchase  of  Brown's  interest,  and  that 
interest  was  regularly  assigned  to  him.  Mr.  Patten  requested  Unthank 
to  join  iu  the  deed  ;  but  Mr.  Unthank  said,  "I  do  not  choose  to  join 
in  the  deed ;  and  it  is  unnecessary  for  me  to  do  so,  because  Z.  Brown 
has  an  absolute  right  to  this  property,  and  may  deal  with  it  as  he 
pleases."  The  first  half-year's  interest,  subject  to  some  deductions, 
which  the  trustees  were  entitled  to  make,  was  duly  paid  to  Hall ;  and, 
shortly  afterwards,  Hall  for  the  first  time  ascertained  that  the  prop- 
erty had  been  regularly  assigned,  in  1808  and  1809,  to  Dearie  and  to 
Sherring. 

Sir  Thomas  Plumer  was  of  opinion  that  the  plaintiffs  had  no  right  to 
the  assistance  of  a  court  of  equity  to  enforce  their  claim  to  the  property 
as  against  the  defendant  Hall,  and  that,  having  neglected  to  give  the 
trustees  notice  of  their  assignments,  and  having  enabled  Z.  Brown  to 
commit  this  fraud,  tfcey  could  not  come  into  this  court  to  avail  them- 
selves of  the  priority  of  their  assignments  in  point  of  time,  iu  order  to 
defeat  the  right  of  a  person  who  had  acted  as  Hall  had  acted,  and  who, 
if  the  prior  assignments  were  to  prevail  against  him,  would  necessarily 
sustain  a  great  loss.     In  that  opinion  I  concur. 

It  was  said  that  there  was  no  authority  for  the  decision  of  the  Mas- 
ter of  the  Rolls,  —  no  case  in  point  to  support  it ;  and  certainly  it  does 
not  appear  that  the  precise  question  has  ever  been  determined,  or  that 
it  has  been  even  brought  before  the  court,  except,  perhaps,  so  far  as  it 
may  have  been  discussed  in  an  unreported  case  of  Wright  v.  Lord  Dor- 
chester. But  the  case  is  not  new  in  principle.  Where  personal  prop- 
erty is  assigned,  delivery  is  necessary  to  complete  the  transaction,  not 
as  between  the  vendor  and  the  vendee,  but  as  to  third  persons,  in  order 
that  they  may  not  be  deceived  by  apparent  possession  and  ownership 
remaining  in  a  person,  who,  in  fact,  is  not  the  owner.  This  doctrine 
is  not  confined  to  chattels  in  possession,  but  extends  to  choses  in 
action,  bonds,  «&c. ;  in  Ryall  v.  Rowles  ^  it  is  expressly  applied  to 
bonds,  simple  contract  debts,  and  other  choses  in  action.     It  is  true 

1  1  Ves.  Sen.  348;  1  Atk.  165. 


SECT.  I.]  DEARLE  V.   HALL.  325 

that  Ryall  i-.  Eowles  was  a  case  iu  baukniptc}^ ;  but  the  Lord  Chancel- 
lor called  to  his  assistance  Lord  Chief  Justice  Lee,  Lord  Chief  Baron 
Parker,  and  Mr.  Justice  Burnett ;  so  that  the  principle  on  which  the 
court  there  acted  must  be  considered  as  having  received  most  authori- 
tative sanction.  These  eminent  individuals,  and  particularly  the  Lord 
Chief  Baron  and  Mr.  Justice  Burnett,  did  not,  in  the  view  which  they 
took  of  the  question  before  them,  confine  themselves  to  the  case  of 
bankruptcy,  but  stated  grounds  of  judgment  which  are  of  gener.al  ap- 
plication. Lord  Chief  Baron  Parker  says,  that,  on  the  assignment  of 
a  bond  debt,  the  bond  should  be  delivered,  and  notice  given  to  the 
debtor ;  and  he  adds,  that,  with  respect  to  simple-contract  debts,  for 
which  no  securities  are  holdeu,  such  as  book-debts  for  instance,  notice 
of  the  assignment  should  be  given  to  the  debtor,  in  order  to  take  away 
from  the  debtor  the  right  of  making  payment  to  the  assignor,  and  to 
take  away  from  the  assignor  the  power  and  disposition  over  the  thing 
assigned.  1  Ves.  Sen.  367;  2  Atk.  177.  In  cases  like  the  present, 
the  act  of  giving  the  trustee  notice  is,  in  a  certain  degree,  taking  pos- 
session of  the  fund  ;  it  is  going  as  far  towards  equitable  possession  as 
it  is  possible  to  go  ;  for,  after  notice  given,  the  trustee  of  the  fund 
becomes  a  trustee  for  the  assignee  who  has  given  him  notice.  It  is 
upon  these  grounds  that  I  am  disposed  to  come  to  the  same  conclusion 
with  the  late  ^Master  of  the  Rolls. 

I  have  alluded  to  a  case  of  Wright  v.  Lord  Dorchester,  which  was 
cited  as  an  authority  in  support  of  the  opinion  of  the  Master  of  the 
Rolls.  In  that  case,  a  person  of  the  name  of  Charles  Sturt  was  en- 
titled to  the  dividends  of  certain  stock,  which  stood  in  the  names  of 
Lord  Dorchester  and  another  trustee.  In  17'J3  Sturt  applied  to  Messrs. 
"Wright  &  Co.,  bankers  at  Norwich,  for  an  advance  of  money,  and,  in 
consideration  of  the  moneys  which  they  advanced  to  him,  granted  to 
them  two  annuities,  and  assigned  his  interest  in  the  stock  as  a  security 
for  the  payment.  No  notice  was  given  by  Messrs.  AVriglit  &.  Co.  to  the 
trustees.  It  would  appear  that  Sturt  afterwards  applied  to  one  of  the 
defendants.  Brown,  to  purcluise  his  life  interest  in  the  stock  ;  Brown 
then  made  inquiry  of  the  trustees,  and  they  stated  that  thoy  had  no 
notice  of  any  incumbrance  on  the  fund  :  upon  this  B.  completed  the 
purchase,  and  received  the  dividends  for  upwards  of  six  years.  ^lessrs. 
"VVriglit  then  filed  a  bill,  and  obtained  an  injunction,  restraining  the 
transfer  of  the  fund  or  the  payment  of  tlie  dividends;  Itut,  on  the 
answer  of  r>rown,  disclosing  tlie  facts  witli  respect  to  his  purchase, 
Lord  Kldon  dissolved  that  injunction.  At  tlie  same  time,  however, 
that  he  dissolved  the  injunction,  he  dissolved  it  only  on  condition  that 
Brown  should  give  security  to  refund  the  money,  if,  at  the  liearing.  the 
court  should  give  judgment  in  favor  of  any  of  tiie  otiier  parties.  'I'hat 
case  was  attenrlcd  also  with  tiiis  particular  circumstance,  that  the  party 
who  pledged  the  fund  stated  liy  liis  answer  that,  wliou  he  executed  the 
security  to  Wriglit  &  Co.,  he  considered  that  the  pledge  was  meant  to 
extend  only  to  certain  real  estates.     For  these  reasons  I  do  not  rely 


326  DEAKLE   V.    HALL.  [CHAP.  IIL 

on  the  case  of  Wright  v.  Lord  Dorchester  as  an  authoritj' ;  I  rest  on 
the  general  i)rincii>le  to  which  1  have  referred  ;  and,  on  that  principle, 
I  am  of  opinion  that  the  plaintiffs  are  not  entitled  to  come  into  a  conrt 
of  eqnity  for  relief  against  the  defendant  Hall.  The  decree  must, 
therefore,  be  atlirmed,  and  the  deposit  paid  to  Hall. 

The  case  of  Loveridge  v.  Cooper,  though  the  circumstances  are 
somewhat  different,  is  the  same  in  principle  with  Dearie  v.  Hall, 
and  must  follow  the  same  decision.^ 


1  It  will  be  observed  that  the  second  purchaser  in  tlie  principal  case  made  due  in- 
quiry of  the  trustees  as  to  prior  incumbrances,  and  made  his  purcliase  upon  their 
assurance  that  there  were  none, —  an  assurance  which  was  the  natural  consequence  of 
the  first  purchaser's  failure  to  notify  the  trustees  of  his  purchase.  The  facts  and  de- 
cision were  similar  in  Greening  v.  Beckford,  5  Sim.  195  ;  Bridge  v.  Beadon,  3  Eq.  664  ; 
■Spain  V.  Hamilton,  1  Wall.  604  ;  Parks  v.  Innes,  33  Barb.  37 ;  Campbell's  App.,  29 
I'a.  401.     See  also  Murdoch  v.  Finney,  21  Mo.  138. 

The  question  is  obviously  very  different  where  the  second  purchaser  makes  no  in- 
quiry of  the  trustee  before  making  the  purchase,  but  rests  his  claim  to  jjriority  purely 
upon  the  fact  that  his  purchase  was  first  notified  to  the  trustee.  It  is  ditticult  to  see 
how  the  second  purchaser  can  found  any  claim  upon  the  neglect  of  the  first  pur- 
chaser when  his  conduct  has  not  been  infiuenced  by  neglect.  It  was  nevertlie- 
less  decided  by  Lord  Lyndliurst  iu  Hulton  v.  Sandys,  Younge,  602,  and  by  Lords 
Lyndhurst  and  Brougliam  in  Foster  i'.  Cockerell,  3  CI.  &  Fin.  4.50,  9  Bligh,  n.  s.  332, 
that  a  fir.st  purchaser  sliould  be  postponed  to  a  subsequent  purchaser  simply  because 
the  former  did  not,  and  the  latter  did,  give  notice  of  his  jjurcha.se  to  the  trustee.  To  the 
same  effect  are  Tirason  v.  Kamsbottom,  2  Keen,  35 ;  Meux  v.  Bell,  1  Hare,  73 ;  Etty  v. 
Bridges,  2  Y.  &  C.  C.  C.  486  ;  Warburtou  v.  Hall,  Kay,  470,  478 ;  Elder  v.  McLean,  3 
Jur.  N.  s.  284 ;  Addison  v.  Cox,  8  Ch.  76  ;  Blackwood  v.  Loudon  Bank,  L.  R.  5  V.  C. 
92;  Re  Freshfield,  11  Ch.  D.  198;  Saffron  Society;;.  Rayner,  14  CIi.  D.  406;  Low  i;. 
Bouverie,  '91,  3  Ch.  83 ;  English  Trust  v.  Bruuton,  '92, 2  Q.  B.  1  ;  Justice  v.  Wynne,  10 
Jr.  Ch.  489 ;  Bishop  v.  Holcomb,  10  Conn.  444,  446-7  ;  Copeland  v.  Mantou,  22  Oh.  St. 
398, 401 ;  Fislier  v.  Knox,  13  Pa.  622  ;  Wetherell's  App.  3  Grant  (Pa.),  281,  288 ;  Fraley's 
App.,  76  Pa.  42;  Pratt's  App.  79  Pa.  378;  Weed  v.  Boutelle,  56  Vt.  570.  See  also 
People's  Bank  v.  Gridley^j^  111.  457  ;  Richards  v.  Griggs,  16  Mo.  416  (semhle)  ;  Smith 
V.  Sterritt,  24  Mo.  260,  262T"HaJUieman  f.  Hillsborougii  Co.,  2  Handy,  101,  105;  Wall- 
ston  V.  Braswell,  1  Jones  Eq.  (N.  cTn^JTr—  f>-e-A*-rxU,y  ^  />J  ^  J y  J^ 

In  Meux  v.  Bell,  supra,  Sir  James  Wigram,  V.  C,  said,  pp.  83-87  :  — 

"I  believe  that,  prior  to  the  decision  in  Mr.  Sturt's  case,  wiiich  occurred  in  1809 
(Wright  V.  Lord  Dorchester,  3  Ru.ss.  49,  u.),  it  had  never  been  held  that  tlie  mere  omis' 
sion  of  a  person  having  an  equitable  interest  in  a  fund,  tlie  legal  projjcrty  of  which  was 
in  another,  to  give  notice  of  that  interest  would  of  itself  give  a  puisne  incumbrancer 
the  priority ;  and  I  think  it  is  ap])arent,  upon  the  judgment  iu  Evans  v.  Bicknell,  6 
Ves.  190,  that  Lord  Eldon  at  that  time  did  not  consider  the  mere  omission  to  give 
notice,  where  the  transaction  was  quite  destitute  of  fraud,  would  have  that  effect.  Sir 
Thomas  Plumer  also,  in  1814,  in  the  case  of  Cooper  v.  Fynmore,  3  Russ.  60,  expressed 
clearly  the  law  of  the  court  to  be  tliat  the  mere  omission  to  give  notice  would  not  post- 
pone a  prior  to  a  puisne  incumbrancer.  .  .  . 

"  I  conceive  it  to  be  now  clearly  decided,  by  the  cases  of  Dearie  >•.  Hall,  Loveridge  v. 
Cooper,  and  Foster  v.  Blackstone,  I  Myl.  &  K.  297 ;  s.  c.  reported  as  Foster  v.  Cock- 
erell, 9  Bligh,  N.  s.  332,  that  if  a  honajide  incumbrancer  upon  a  fund,  the  legal  interest 
in  which  is  in  a  trustee,  gives  notice  of  his  incumbrance  to  the  trustee,  and  noitlier  the 
incumbrancer  giving  the  notice,  nor  the  trustee  at  the  time  of  such  notice  being  given, 
has  notice  of  any  prior  incumbrance  affecting  the  fund,  the  incumbrancer  giving  such 
notice,  so  long  as  the  circumstances  of  the  case  remain  unaltered,  will  be  entitled  to 
priority  over  a  prior  incumbrancer  upon  the  fund  who  has  omitted  or  neglected  to  give 


SECT.  I.]  DEAELE   V.   HALL.  327 

notice  of  his  incumbrance,  although  the  puisne  incumbrancer  mav  have  advanced  bis 
money  without  making  any  previous  inquiries  of  the  trustee 

"  I  think  these  decisions  are  founded  on  principle.  The  omission  of  the  puisne  in- 
cumbrancer to  make  iuciuiry  cannot  bo  material  wliere  iu(iuiry  into  the  circumstances  of 
the  case  could  not  have  led  to  a  knowledge  of  the  prior  incumbrance. 

"  The  question  is,  whether  tlie  inquiry,  if  it  had  been  made,  would  or  would  not  have 
informed  the  puisne  incumbrancer  of  any  material  fact  affecting  his  interest.  If  his 
conduct  would  have  been  the  same,  whether  he  bad  made  the  iiKjuiry  or  not,  the  omis- 
sion of  the  inquiry  cannot  be  a  reason  fur  depriving  him  of  the  benefit  of  his  subsequent 
vigilance. 

"  The  only  suggestion  which,  it  appears  to  me,  can  be  made  in  answer  to  this  view 
of  the  question  is,  that  if  the  puisne  incumbrancer  has  not  made  any  inquiry,  he  has 
not,  in  point  of  fact,  been  deceived  or  injured  by  the  neglect  or  omission  of  the  prior 
incumbrancer.  But  there  is  a  fallacy  in  that  way  of  stating  the  case.  If  the  puisne 
incumbrancer  advances  his  money  bona  jidi',  without  inquiry,  it  must  be  presumed  that 
he  would  equally  have  advanced  it  after  inquiry,  the  result  of  which  would  have  nega- 
tived the  existence  of  any  prior  incumbrauce.  The  injury  he  sustains,  and  which  gives 
him  priority,  is  ex  post  Jhcto.  If,  after  advancing  his  money,  be  is  informed  that  there 
is  a  prior  incumbrance,  he  will  immediately  use  diligence  to  get  in  or  secure  his  prop- 
erty. If,  on  the  other  hand,  he  is  not  told  when  he  gives  the  notice  that  there  is 
a  previous  incumbrance,  he  is  led  to  sujjpose  that  his  security  is  good  ;  he  relies  upon 
it,  and  he  is  injured  in  having  placed  such  reliance  ujjon  it  if  it  should  appear  that 
there  is  a  prior  incumbrance.  The  notice  which,  when  it  is  given,  has  the  effect  of 
inquirv-  is  given  either  at  the  time  the  money  is  advanced  or  afterwards  ;  and  the  only 
distinction  between  the  two  cases  is  a  distinction  between  a  party  who  advances  money 
at  the  time  of  taking  a  security,  and  a  party  who  takes  a  security  for  an  antecedent 
debt.  The  notice  which  the  puisne  incumbrancer  gives  converts  the  trustee  of  the 
fund  into  a  trustee  for  the  party  giving  the  nr)tice.  Dearie  r.  Hall.  The  credit  which 
the  puisne  incumbrancer  gives  to  the  fund  after  the  notice  is  as  good  a  consideration  as 
that  of  any  other  creditor  who  takes  a  security  for  an  antecedent  debt,  which  is  clearly 
sufficient.  Plumb  v.  Fluitt,  2  Anst.  4.32.  And  the  puisne  incumbrancer  has  a  better 
equity  than  tlie  earlier  incumbrancer,  because  the  former  by  notice  to  the  trustee  has 
perfected  his  equitable  title,  which  the  latter,  by  omitting  or  neglecting  to  give  notice, 
has  not  done." 

An  assignee  in  bankruptcy  was,  in  England,  on  the  principle  of  Dearie  t».  Hall, 
postponed  to  a  subsequent  particular  assignee,  if  the  latter  gave  notice  first.  Smith  v. 
Smith,  Cr.  &  M.  2.31 ;  Re  Atkinson,  2  1).  x\I.  &  G.  140;  A'e  Uarr,  4  K.  &  J.  219 ;  Lloyd 
V.  Banks,  .3  Ch.  488;  Re  Busscil,  l.-j  Ivj.  26;  Palmer  v.  Locke,  18  Ch.  I).  .381.  The 
rule  was  otherwise  under  the  Bankrnjjtcy  Act  of  1849,  §  141.  Re  Coombes,  1  Giff.  91 ; 
Bright's  Trusts,  13  Ch.  D.  413.     But  see  Palmer  v.  Locke,  supra. 

The  English  rule  obtains  in  Scotlanil(Redfearn  r.  Ferrier,  1  Dow,  SO)  and  in  France. 
But  the  opposite  rule  prevails  in  Germany  (4  Ilarv.  L.  Uev.  300,  n.  2)  and  in  many  states 
in  this  country.  White  v.  Wiley,  14  Ind.  496;  Summers  v.  Hutson,  48  Ind.  228; 
Thayer  v.  Daniels,  113  Mass.  129  (semhie) ;  Putnam  v.  Story,  132  Mass.  205  ;  McDonald 
V.  Kneeland,  5  Minn.  3.52  (spmlilc) ;  Kennedy  v.  Parko,  17  N.  J.  Eq.  41.');  Kamona  v, 
Huelbig,  23  N.  J.  Etj.  78  ;  Muir  v.  Sdienck,  3  Hill,  228;  Hol)in.Hon  ;;.  Week.s,  6  How. 
Pr.  161  ;  Uichard.son  v.  Ainsworth,  20  How.  Pr.  521  ;  Bush  v.  Lathrop,  22  N.  Y.  535, 
.'S46(.icMWe)  ;  (ireentree  v.  Kosenstock,  61  N.  Y.  583,  593;  Williams  v.  Ingersoll,  89  N. 
Y.  508,  523;  Fairiianks  v.  Sargent,  104  N.  Y.  lOS.  118;  Blandiard  >:  Evans,  55  N.  Y. 
Sup'r  Ct.  543  ;  (but  see  Parks  v.  Innes,  .33  Barb.  .37  ;)  Lindsay  v.  Wilson,  2  Dev.  &  Bat. 
Eq.  85;  Clarke  v.  Ilogeman,  13  W.  Va.  718;  Tinglo  v.  Fisher,  20  W.  Va.  497.  In 
Thayer  I'.  Daniels,  su/^a,  the  court  speaking  tbroiigii  Dpvciih,  J.,  said,  p.  131  :  "The 
rule  in  England  would  seem  to  he  that,  as  between  successive  purchasers  of  a  chose  in 
action,  he  will  have  the  preference  who  first  gives  notice  to  the  debtor,  even  if  he  be  a 
subsecpient  purchaser.  .  .  .  Sncb,  howcvfr,  li.as  not  bpen  tiio  rule  ado])t('d  in  this  State, 
where  it  is  well  settled  that  the  assignment  of  a  chose  in  action  is  comjilote  upon  tlio 
mutual  assent  of  assignor  and  a.ssignee,  an<l  does  not  gain  additional  validity  as  against 
third  j)ersouB  by  notice  to  the  debtor." 


323  DEARLE   V.   HALL.  [CIIAP.  IIL 

It  has  been  deciiled  tlmt  the  first  assignee  of  a  policy  of  insnrance  to  wliom  the 
jwliov  is  delivered  will  prevail  against  a  subsecjuent  assignee  who  does  not  get  the 
})olicv,  even  thougli  tlio  insurance  conijiany  is  notified  of  tiie  second  assignment  first. 
Spencer  v.  Clarke,  9  Ch.  I).  137;  West  »jf  England  IJank,  51  L.  J.  Cli.  I'J!) ;  (bnl  see 
Le  Fenore  r.  Sullivan,  10  Moo.  P.  C.  1).  And,  it  is  conceived,  the  principle  of  this 
decision  would  apjdy  to  the  assignment  of  any  specialty.  Socic^tc'  Gendral,  11  A  pp. 
Cas.  20  (5t'»iWe) ;  Kamena  y.  Iluelbig,  23  N.  J.  Ecj.  78;  Maybiii  r.  Hall,  4  Rich.  Eq. 
lO.'i ;  Strange  v.  Houston  Co.,  53  Tex.  162.  But  see,  contra,  Fraley's  App.,  76  Pa.  42 ; 
Pratt's  App.,  77  Pa.  378. 

Whatever  view  may  be  entertained  as  to  the  English  doctrine  which  prefers  the  as- 
signee who  first  gives  notice,  tlie  second  assignee  is  in  several  contingencies  dearly  en- 
titled to  supplant  the  first  assignee.  E.  g.  ( 1 )  if,  acting  in  good  faitii,  he  obtains  payment 
of  the  claim  assigned  ;  Judson  v.  Corcoran,  17  How.  612  ;  Bridge  v.  Conn.  Co.,  152  Ma.ss. 
343  ;  Bentley  i'.  Hoot,  5  Paige,  632,  640  ;  or  (2)  if  he  reduces  iiis  claim  to  a  judgment  in 
his  own  name  ;  Judson  v.  Corcoran,  17  How.  612  ;  Mercantile  Co.  v.  Corcoran,  1  Gray, 
75;  or  (3)  if  he  effects  a  novation  with  the  obligor,  whereby  the  obligation  in  favor  of 
the  assignor  is  superseded  by  a  new  one  running  to  himself,  N.  Y.  Co.  v.  Schuyler,  34 
N.  Y.  30,  80;  Strange  v.  Houston  Co.,  53  Tex.  1(52;  or  (4)  if  he  obtains  the  document 
containing  the  obligation  when  the  latter  is  in  the  form  of  a  specialty;  Re  Gillespie,  15 
Fed.  Rep.  734;  Bridge  v.  Conn.  Co.,  152  Mass.  343;  Fisher  v.  Knox,  13  Pa.  622.  In 
all  these  cases,  having  obtained  a  legal  right  in  good  faith  and  for  value,  the  prior  as- 
signee cannot  properly  deprive  him  of  this  legal  right. 

Notice  (where  the  English  rule  prevails). 

The  prior  notice  by  the  later  assignee  is  none  the  less  effectual,  although  at  the 
time  of  giving  it  he  had  become  aware  of  the  earlier  assignment.  Mutual  Life  Society 
V.  Langley,  32  Ch.  Div.  460.  But  priority  of  notice  will  not,  of  course,  help  an  assignee 
who  took  his  assignment  with  knowledge  of  the  earlier  transfer  to  another.  Notice 
given  to  a  trustee  before  his  appointment  is  of  no  effect,  Roxburghe  v.  Cox,  17  Ch.  D, 
527.  But  notice  need  not  come  from  the  assignee.  Knowledge  acquired  by  the  trustee 
or  obligor  from  a  third  person,  if  of  a  character  to  influence  the  conduct  of  a  reasonable 
man,  is  effectual.  Lloyd  v.  Banks,  3  Ch.  488,  490;  Ex  jiarte  Stewart,  34  L.  J.  Bank. 
6 ;  Barron  v.  Porter,  44  Vt.  587  ;  (but  see  Webster  v.  Moranville,  30  Vt.  701 ;  Hut- 
chins  V.  Wait,  35  Vt  360).  If  notices  by  successive  assignees  are  simultaneous,  the 
prior  assignee  prevails.  Johnstown  v.  Cox,  19  Ch.  Div.  17,  16  Ch.  D.  571.  The  rule 
is  the  same  where  the  successive  assignees  are  volunteers.  Sloper  i'.  Cottrell,  6  E.  &  B. 
497  ;  Justice  v.  Wynne,  12  Ir.  Ch.  R.  289.  If  the  assignor  is  himself  one  of  the  trustees 
of  the  fund  a,ssigned,  his  knowledge  is  not  equivalent  to  notice.  Brown  v.  Savage,  4 
Drew.  635.  But  if  an  assignee  is  one  of  the  trustees,  his  knowledge  is  equivalent  to 
notice.  Willes  v.  Greenhill,  29  Beav.  376  ;  Ex  parte  Garrard,  5  Ch.  Div.  61  ;  Re  Wyatt, 
'92,  1  Ch.  188.  If  the  prior  assignee  cannot  give  notice,  because  he  is  ignorant  of  the 
trustee's  existence,  he  will  not  be  postponed  to  a  second  assignee  who  does  give  notice. 
Feltham  i;.  Clark,  1  De  G.  &  Sm.  307.  If  a  contract  claim  is  held  in  trust,  notice  should 
be  given  to  the  trustee  and  not  to  the  debtor.  Gardner  v.  Lachlan,  8  Sim.  123.  Mail- 
ing a  notice  has  been  thought  sufficient  to  protect  the  interest  of  the  several  assigns. 
Belcher  v.  Bellamy,  2  Ex.  303;  Re  Hickey,  10  Ir.  R.  Eq.  117 ;  Daniel  v.  Freeman,  11 
It.  R.  Eq.  233.  — Ed. 


SECT.  I.]  LEE  V.  HOWLETT.  329 


LEE   V.   HOAVLETT. 
In  Chancery,  before  Sir  TV.  Page  Wood,  V.  C,  March  11,  1856. 

[Reported  in  2  Kay  ^  Johnson,  531] 

Timothy  Tripp  Lee,  by  his  will,  dated  the  30th  of  June,  1840, 
amongst  other  devises,  gave  to  his  wife  Elizabeth  (since  deceaserl) 
certain  freehold  and  leasehold  hereditaments,  known  as  Dell's  Manor 
farm,  to  hold  the  same  for  her  life  ;  and,  after  her  decease,  the  testator 
directed  that  the  same  should  be  sold  by  public  auction,  and  that  the 
money  should  be  equally  divided  among  his  surviving  children  ;  and 
the  testator  devised  and  bequeathed  the  residue  of  his  property,  as 
well  funded  or  otherwise,  to  his  wife  for  her  life,  and  after  her  death, 
to  be  equally  divided  amongst  his  surviving  children.  And  he  ap- 
pointed his  wife,  and  his  sons,  the  plaintiff  Timothy  Lee  and  Cornelius 
Lee  (since  deceased),  executrix  and  executors  of  his  will. 

The  testator  died  on  the  29th  of  December,  18-10,  leaving  his  widow 
and  eleven  children  surviving  him. 

By  a  deed  of  arrangement,  dated  in  1841,  and  executed  by  all  the 
children  (except  one  who  had  died;,  it  was  mutually  agreed  that  all 
the  property  devised  by  the  testator  amongst  his  surviving  children 
should  be  divided  and  disposed  of,  subject  to  the  life  interests  therein, 
in  like  manner  and  shares  as  if  the  same  had  been  given,  subject  as 
aforesaid,  amongst  all  his  children  who  should  survive  him,  equally  as 
tenants  in  common,  so  that  one  equal  eleventh  part  or  share  thereof 
should  go  and  be  paid  and  payable  to  each  and  every,  or  to  the  ex- 
ecutors, administrators,  or  assigns  of  each  and  every,  the  said,  &c. 
(the  cliildren),  notwithstanding  any  or  either  of  thom,  the  said,  &c., 
should  die  before  tlie  property  should  become  divisible  or  payable,  and 
the  executors  or  administrators  of  any  of  them  who  might  so  die  should 
receive  his  or  her  eleventh  share,  and  apply  the  same  as  his  or  her 
personal  estate,  &c. 

Ciiarles  Lee,  one  of  the  children,  by  indenture,  dated  the  24th  of 
March,  1842,  mortgaged  liis  reversionary  share  and  interest  of  all  the 
property  under  the  will  and  deed  of  arrangement  to  one  Simon  Main, 
to  secure  £4o0,  and  interest,  of  which  indenture  the  plaintiff  Timothy 
Lee  had  not  received  notice  till  tlic  year  1H48, 

By  indenture,  dated  February  14,  1844,  Charles  Lee  again  assigned 
his  sliare  to  a  Miss  Lys  to  secure  £250,  and  interest;  of  which  inden- 
ture Miss  Lys  gave  notice  to  the  plaintiff  in  May,  1844. 

At  the  time  of  the  mortgage  to  her.  Miss  Lys  had  no  notice  of  the 
prior  mortgage. 

By  inflonture,  dated  the  1st  of  Oetober,  1840,  Charles  I>ee  again 
assigned  his  share  to  onp  Gaelics,  to  secure  a  sum  of  C^OO  and  in- 
terest;  of  which  indenture  Gaches  gave  notice  to  the  plaintiff  in  the 
same  month  of  October,  1846. 


330  LEE   V.    IIOWLETT.  [ciIAP.  III. 

The  testator's  widow  having  died  in  1854,  this  suit  was  instituted  by 
the  i)huntitT  for  the  administration  of  the  real  estate  ;  a  previous  suit 
of  "  Lys  V.  Lee  "  had  beeu  instituted  by  Miss  Lys  to  realize  her  se- 
curity out  of  the  personal  estate,  which,  however,  was  wholly  exhausted, 
leaving  nothing  but  the  real  estate  and  its  produce  for  the  incumbran- 
cers to  look  to. 

A  decree  for  sale  had  been  made  in  this  suit  (Lee  v.  Ilowlett),  and 
the  usual  inquiry  directed  as  to  incumbrances  on  the  shares  of  the 
children. 

Pursuant  to  the  decree  Dell's  Manor  farm  had  been  sold  for  £3,400, 
and  the  residuary  estate  for  £500.  The  chief  clerk  certified  as  to  the 
incumbrances,  and,  amongst  others,  to  those  on  Charles  Lee's  share  as 
above ;  the  result  of  his  finding  being  that  the  several  mortgagees, 
Vaughan  (in  whom  Simon  Main's  mortgage  had  become  vested),  Miss 
Lys,  and  Gaches,  were  entitled  according  to  the  dates  of  their  incum- 
brances. But  it  was  arranged  that  the  question  of  priority,  with  refer- 
ence to  the  dates  of  the  several  notices  given  to  the  plaintiff,  should  be 
argued  before  the  court  on  the  hearing  for  further  consideration. 

The  cause  now  came  on  to  be  so  heard. 

Mr.  Rolt,  Q.  C,  and  Mr.  Speed.,  for  the  plaintiff. 

Mr.  Daniel.^  Q.  C,  and  Mr.  W.  P.  Murray,  for  Miss  Lys. 

Mr.  Bilton,  for  other  parties. 

Mr.  Caclman  Jones,  for  Vaughan,  the  first  mortgagee.^ 

Vice  Chancellor  Sir  W.  Page  Wood.  I  am  of  opinion  that  as  to 
that  portion  of  the  property  which  was  ordered  to  be  sold,  I  am  bound 
to  hold,  on  the  principle  of  Foster  v.  Cockerell,  Dearie  v.  Hall,  and 
that  class  of  cases,  that  the  incumbrancer  who  first  gave  notice  of  his 
incumbrance  must  prevail  over  the  others.  The  principle  does  not 
depend  simply  on  a  question  of  mala  fides;  but  the  rule  is,  that  the 
party  who  first  makes  himself  master  of  a  chose  in  action,  by  giving 
notice,  to  prevent  its  being  handed  over  by  the  person  in  whose  hands 
it  is  to  any  other  claimant,  —  in  other  words,  who  first  devests  the  title 
of  the  owner  by  giving  notice  to  the  person  through  whom  the  owner 
must  derive  the  fund,  —  arrests  that  fund,  and  acquires  the  property 
for  himself.  Whether  the  fund  be  a  trust  fund  held  by  A.  in  trust  for 
B.,  or  a  debt  payable  by  A.  to  B.,  if  B.  assigns,  and  his  assign  requires 
A.  to  pay  the  money  over  to  him,  that  gives  him  priority  over  a  pre- 
vious assign  of  B.,  who  has  not  given  such  notice. 

It  is  decided  that  this  doctrine  does  not  apply  to  real  estate ;  ^  and 
in  Wiltshire  v.  Rabbits  *  the  late  Vice  Chancellor  of  England  considered 

1  The  ar^ments  of  counsel  are  omitted.  —  Ed. 

-  Bugden  v.  Bignold,  2  Y.  &  C.  C.  C.  379,  392  ;  Malcolm  ;;.  Charlesworth,  1  Keen, 
63  ;  Jones  r.  .Jones,  8  Sim.  633  ;  Wilmot  v.  Pike,  5  Hare,  14  ;  Rooper  v.  Harrison,  2  K. 
&  J.  86, 103  ;  Phipps  v.  Lovegrove,  16  Eq.  90,  91  ;  McCreight  v.  Foster,  5  Ch.  604  ;  Union 
Bank  v.  Kent,  39  Ch.  Div.  238  ;  Humber  v.  Richards,  45  Ch.  D.  589  ;  Rochard  r.  Ful- 
ton, 7  Jr.  Eq.  R.  131 ;  Re  Burke,  L.  R.  9  Ir.  52;  Park?  v.  Innes,  33  Barb.  37  (semble) 
Accord.  —  Ed. 

8  14  Sim.  76. 


SECT.  I.]  PHILLIPS   V.   PHILLIPS.  331 

that  the  doctrine  was  not  applicable  to  an  assignment  of  an  equitable 
interest  in  a  chattel  real.  In  this  case,  part  of  the  property  is  directed 
to  be  sold,  without  saying  by  whom.  The  sale  must  be  by  the  heir  or 
executors.  Here,  the  same  person  fills  both  those  characters,  and  the 
property  must  therefore  pass  through  him.  It  must  be  converted  into 
money,  and  none  of  the  legatees  could  have  reached  that  money  except 
through  him  ;  and  they  could  never  have  had  the  property  in  the  shape 
of  land,  but  only  as  money.  Then,  the  executor  being  bound  to  pay 
the  shares  in  this  manner,  the  fact  that,  at  the  time  when  this  security 
was  given,  the  period  for  the  sale  had  not  arrived,  is  not  material.^ 
"Whenever  tlie  property  was  sold  and  the  money  paid  to  the  executor, 
he  would  hold  part  of  it  for  Charles  Lee,  or  for  the  person  who  had 
obtained  an  assignment  of  liis  share  from  Charles  Lee.  Here,  Miss 
Lys  first  gave  to  the  executor  notice  of  the  assignment  in  lier  favor, 
and  therefore  she  has  priority  over  all  other  assigns  of  Charles  Lee's 
share  as  to  this  part  of  the  mortgaged  property. 

As  regards  the  residuary  real  estate,  there  is  no  direction  in  the  will 
to  sell  that.  It  was  devised  to  the  testator's  wife,  for  life,  and  after 
her  death  to  her  children.  That  would  carry  the  fee-simple,  and  the 
children  would  not  be  obliged  to  take  their  shares  from  the  hands  of  any 
tliird  person,  and  although  by  the  deed  of  arrangement  they  seem  to 
have  treated  it  as  personal  estate,  it  was  in  their  own  hands  ;  and  there- 
fore there  can  be  no  question  of  notice  as  to  this  property,  but  it  must  go 
to  the  incumbrancers  according  to  the  order  in  time  in  which  they  ob- 
tained their  securities. 


PHILLIPS  V.  PHILLIPS. 
In  Chancery,  before  Lord  Westbury,  C,  December  9,  10,  1861. 

[Reported    in  4  De  Gex,  Fisher,  ^-  Jones,  208.] 

The  Lord  Chancellor.'^  When  I  reserved  ray  judgment  at  the  con- 
clusion of  the  argument  in  tliis  case,  it  was  rather  out  of  respect  to  that 
argument  tlian  from  a  feeling  of  any  dilliculty  willi  regard  to  tlie  ques- 
tion that  had  been  so  strenuously  contested  l)efore  me. 

The  case  is  a  very  simple  one.  The  plaintitT  claims  as  the  grantee 
of  an  annuity  granted  by  a  deed  dated  in  the  montli  of  February,  1820, 
to  issue  out  of  certain  hinds  in  the  county  of  Moiniiouth,  secured  by 
powers  of  distress  antl  entry.  The  annuity  or  rent-cliarge  was  not  to 
arise  until  the  death  of  one  Rebecca  Phillips,  who  died  in  the  month  of 
December,  18)39,  and  the  first  payment  of  the  aiuuiity  became  due  on 

'  Foster  v.  Cockcrell,  3  CI.  &  F.  456;  Consol.  Co.  v.  Riley,  h  Jur.  n.  b.  1283;  Re 
Hughes's  Tru8tH,  2  II.  &  M.  89  ;  Rr  Wyatt,  '92,  1  Ch.  188;  Daueel  v.  Frolimau,  11  Ir. 
B.  Eq.  233;  Putnam  v.  Story,  132  Mass.  205  Accord.  —ILu. 

'  See  supra,  p.  70,  n.  1.  —  Ed. 


332  niiLLiPS  V.  PHILLIPS.  [chap.  hi. 

the  8th  of  ]\r:irch.  1810.  The  case  was  argued  on  both  sides  on  the 
admitted  basis  that  the  legal  estate  was  outstauding  iu  certain  incum- 
brancers, and  is  still  outstanding.  Subject  to  the  annuity  the  grantor 
was  entitled  iu  fee-simple  in  equity.  In  February,  1821,  the  grantor 
intermarried  with  one  Mary  Phillips.  On  the  occasion  of  that  mar- 
riage, a  settlement,  dated  in  February,  1821,  was  executed,  and  under 
this  deed  the  defendants  claim  ;  and  claim,  therefore,  as  purchasers  for 
a  valuable  consideration.  No  payment  has  ever  been  made  in  respect 
of  the  annuity. 

The  bill  was  filed  within  twenty  j'ears,  and  seeks  the  ordinary  relief 
applicable  to  the  case.  The  defendants  by  their  answer  insist  that  the 
deed  was  voluntary,  and  therefore  void  under  the  Statute  of  Elizabeth, 
as  against  them  in  their  character  of  purchasers  for  valuable  consider- 
ation, and  they  also  insist  upon  the  Statute  of  Limitations.  But  in  tlie 
answer  the  defence  of  purchase  for  valuable  consideration  without 
notice  is  not  attempted  to  be  raised. 

At  the  hearing,  an  affidavit  of  Mary  Phillips  and  another  person  was 
produced,  denying  the  fact  of  notice  of  the  annuity  at  the  time  of  the 
grant  and  at  the  time  of  the  creation  of  the  marriage  settlement,  and 
the  contention  at  the  bar  was  that  the  defence  of  purchase  for  valuable 
consideration  without  notice  was  available  for  the  defendants,  under 
these  circumstances,  and  ought  to  be  allowed  as  a  bar  to  the  claim  by 
the  court.  The  Vice  Chancellor  in  his  judgment  refused  to  admit  the 
defence  of  purchase  for  valuable  consideration  without  notice,  and  I 
entirely  agree  with  him  in  the  conclusion  tliat  such  a  defence  requires 
to  be  pleaded  by  the  answer,  more  specially  where  an  answer  has  been 
put  in. 

But  I  do  not  mean  to  rest  my  decision  upon  that  particular  ground 
because  I  have  permitted  the  argument  to  proceed  with  refei-ence  to  the 
general  proposition,  which  was  maintained  before  me  with  great  energy 
and  learning,  viz.  that  the  doctrine  of  a  court  of  equity  was  this,  that 
it  would  give  no  relief  whatever  to  any  claimant  against  a  purchaser 
for  valuable  consideration  without  notice.  It  was  urged  upon  me  that 
authority  to  this  effect  was  to  be  found  in  some  recent  decisions  of  this 
court,  and  particularly  in  the  case  decided  at  the  Rolls  of  the  Attor- 
ney-General V.  Wilkins.'' 

I  undoubtedly  was  struck  with  the  novelty  and  extent  of  the  doc- 
trine that  was  thus  advanced,  and  in  order  to  deal  with  the  argument 
it  becomes  necessarj'  to  revert  to  elementary  principles.  I  take  it  to  be 
a  clear  profJbsition  that  every  conveyance  of  an  equitable  interest  is  an 
innocent  conveyance ;  that  is  to  say,  the  grant  of  a  person  entitled 
merely  in  equity  passes  only  that  which  he  is  justly  entitled  to,  and  no 
more.  If,  therefore,  a  person  seized  of  an  equitable  estate  (the  legal 
estate  being  outstanding),  makes  an  assurance  by  way  of  mortgage  or 
grants  an  annuity,  and  aftei*wards  conveys  the  whole  estate  to  a  pur- 

1  17  Beav.  285. 


SECT.  I.]  PHILLIPS   V.   PHILLIPS.  333 

chaser,  he  can  grant  to  the  purchaser  that  which  he  has,  viz.  the  estate 
subject  to  the  mortgage  or  annuity,  and  no  more.  The  subsequent 
grantee  takes  only  that  which  is  left  in  the  grantor.  Hence  grantees 
and  incumbrancers  claiming  in  equity  take  and  are  i-auked  according  to 
the  dates  of  their  securities;  and  tlie  maxim  applies,  "  Qui  prior  est 
tempore  potior  est  jure."  The  first  grantee  is  potior ;  that  is,  pjotentior. 
He  has  a  better  and  superior  —  because  a  prior  —  equitj'.  The  first 
grantee  has  a  right  to  be  paid  first,  and  it  is  quite  immaterial  whether 
the  subsequent  incumbrancers  at  the  time  when  they  took  their  securi- 
ties and  paid  their  money  had  notice  of  the  first  incumbrance  or  not. 
These  elementary  rules  are  recognized  in  the  case  of  Brace  v.  Duchess 
of  Marlborough,^  and  they  are  further  illusti-ated  by  the  familiar  doc- 
trine of  the  couft  as  to  tacking  securities.  It  is  well  known  that  if 
there  are  three  incumbrancers,  and  tlie  third  incumbrancer,  at  the  time 
of  his  incumbrance  and  payment  of  his  money,  had  no  notice  of  the 
second  incumbrance,  then,  if  the  first  mortgagee  or  incumbrancer  has 
the  legal  estate,  and  the  third  pays  him  off,  and  takes  an  assignment 
of  his  securities  and  a  conveyance  of  the  legal  estate,  he  is  entitled  to 
tack  his  third  mortgage  to  the  first  mortgage  which  he  has  acquired, 
and  to  exclude  the  intermediate  incumbrancer.  But  this  doctrine  is 
limited  to  tlie  case  where  the  first  mortgagee  has  the  legal  title  ;  for  if 
the  first  mortgagee  has  not  the  legal  title,  the  third  does  not  by  the 
transfer  obtain  the  legal  title,  and  the  third  mortgagee  })y  payment  off 
of  the  first  acquires  no  priority  over  the  second.  Now,  the  defence  of 
a  purchaser  for  valuable  consideration  is  the  creature  of  a  court  of 
equit}',  and  it  can  never  be  used  in  a  manner  at  variance  with  the  ele- 
mentary rules  which  have  already  been  stated.  It  seems  at  first  to  have 
been  used  as  a  shield  against  the  claim  in  equity  of  persons  having  a 
legal  title.  Bassett  i'.  Nosworthy '^  is,  if  not  the  earliest,  tlie  best  early 
reported  case  on  the  subject.  There  the  plaintiff  claimed  under  a  legal 
title,  and  this  circumstance,  together  with  the  maxim  which  I  have  re- 
ferred to,  probably  gave  rise  to  the  notion  that  this  defence  was  good 
only  against  the  legal  title.  But  there  appear  to  be  three  cases  in  which 
the  use  of  this  defence  is  most  familiar. 

First,  where  an  application  is  made  to  an  auxiliary  jurisdiction  of 
the  court  by  the  possessor  of  a  legal  title,  as  by  an  heir-at-law  (which 
was  the  case  in  Bassctt  v.  Nosvvorthy),'^  or  by  a  tenant  for  life  for  the 
delivery  of  title-deeds  (which  was  the  case  of  Wallwyn  v.  Lee),^  and 
the  defendant  pleads  that  he  is  a  bona  fide  purchaser  for  valuable  con- 
sideration without  notice.  In  sucli  a  case  tlie  defence  is  good,  and  the 
reason  given  is  that  as  against  a  purchaser  for  valuable  consideration 
without  notice  the  court  gives  no  ussiHtance ;  that  is,  no  assistance  to 
the  legal  title.  But  this  rule  docs  not  ai)ply  where  the  court  exercises 
a  legal  jurisdiction  concurrently  with  courts  of  law.     'J'hus  it  was  de- 

1  2  I".  Wm8.  491.  2  Finch,  102;  s.  c.  2  White  &  T.  L.  C.  1. 

»  9  Vee.  24. 


334  niiLLirs  v.  phillips.  [chap.  hi. 

oidod  l>y  Lord  Tluirlow  in  Willianis  v.  Lanibe,'  that  the  defence  could 
uot  be  pkwdod  to  a  bill  for  dower ;  and  by  Sir  J.  Leach,  iu  Collins  v. 
Archer,-  that  it  was  uo  answer  to  a  bill  for  tithes.  Iu  those  cases  the 
court  of  equity  was  not  asked  to  give  the  plaintiff  any  equitable  as 
distinijuishod  from  lecral  relief. 

The  second  class  of  cases  is  the  ordinary  one  of  several  purchasers 
or  incumbrancers  each  claiming  in  equity,  and  one  who  is  later  and 
last  in  time  succeeds  in  obtaining  an  outstanding  legal  estate  not  held 
upon  existing  trusts  or  a  judgment,  or  any  other  legal  advantage  the 
possession  of  which  may  be  a  protection  to  himself  or  an  embarrass- 
ment to  other  claimants.  He  will  not  be  deprived  of  this  advantage 
by  a  court  of  equity.  To  a  bill  filed  against  him  for  this  purpose  by 
a  prior  purchaser  or  incumbrancer,  the  defendant  may  maintain  the 
plea  of  purchase  for  valuable  consideration  without  notice  ;  for  the 
principle  is,  that  a  court  of  equity  will  not  disarm  a  purchaser,  that  is, 
will  not  take  from  him  the  shield  of  any  legal  advantage.  This  is  the 
common  doctrine  of  the  tabula  in  naitfragio. 

Thirdly,  where  there  are  circumstances  that  give  rise  to  an  equity  as 
distinguished  from  an  equitable  estate,  —  as,  for  example,  an  equity  to 
set  aside  a  deed  for  fraud,  or  to  correct  it  for  mistake,  —  and  the  pur- 
chaser under  the  instrument  maintains  tlie  plea  of  purchase  for  valu- 
able consideration  without  notice,  the  court  will  not  interfere.^ 

Now  these  are  the  three  cases  in  which  the  defence  in  question  is 
most  commonly  found.  None  of  them  involve  the  case  that  is  now 
before  me. 

It  was  indeed  said  at  the  bar  that  the  defendants,  being  in  possession, 
had  a  legal  advantage  in  respect  of  the  possession,  of  which  they  ought 
not  to  be  deprived.  But  that  is  to  confound  the  subject  of  adjudica- 
tion w'ith  the  means  of  determining  it.  The  possession  is  the  thing 
which  is  the  subject  of  controversy,  and  is  to  be  awarded  by  the  court 
to  one  or  to  the  other.  But  the  subject  of  controversy,  and  the  means 
of  determining  the  right  to  that  subject  are  perfectly  different.  The 
argument,  in  fact,  amounts  to  this:  "  I  ought  not  to  be  deprived  of 
possession,  because  I  have  possession."  The  purchaser  will  not  be  de- 
prived of  anything  that  gives  him  a  legal  right  to  the  possession,  but 
the  possession  itself  must  not  be  confounded  with  the  right  to  it. 

The  case,  therefore,  that  I  have  to  decide  is  the  ordinary  case  of  a 
person  claiming  under  an  innocent  equitable  conveyance  that  interest 
which  existed  in  the  grantor  at  the  time  when  that  conveyance  was 
made.  But,  as  I  have  already  said,  that  interest  was  diminished  by 
the  estate  that  had  been  previously  granted  to  the  annuitant,  and  as 
there  was  no  ground  for  pretending  that  the  deed  creating  the  annuity 
was  a  voluntary  deed,  so  there  is  no  ground  whatever  for  contending 
that  the  estate  of  the  person  taking  under  the  subsequent  marriage 

1  3  B.  C.  C.  264.  2  1  Russ.  &  Mylne,  284. 

'  As  to  the  alleged  difference  between  an  equity  and  an  equitable  estate,  see  1 
Harvard  Law  Rev.  2.  —  Ed. 


SECT.  I.]  NEWMAN   V.   NEWMAN.  335 

settlement  is  not  to  be  treated  by  this  court,  being  an  equitable  estate, 
as  subject  to  the  antecedent  annuity,  just  as  effectually  as  if  the  an- 
nuity itself  had  been  noticed  and  excepted  out  of  the  operation  of  the 
subsequent  instrument. 

I  have  no  ditiieulty,  therefore,  in  holding  that  the  plea  of  purchase 
for  valuable  consideration  is  upon  principle  not  at  all  applicable  to  the 
case  before  me,  even  if  I  could  take  notice  of  it  as  having  been  rightly 
and  regularly  raised. 

"We  next  come  to  examine  the  authorities  upon  which  the  defence 
relies.  Now,  undoubtedly,  I  cannot  assent  to  some  observations  which 
I  find  attributed  to  the  Master  of  the  Rolls  in  the  report  of  the  case  of 
the  Attorney-General  v.  Wilkins  ;  ^  but  to  the  decision  of  that  case,  as 
explained  by  his  Honor  in  the  subsequent  case  of  Colyer  v.  Finch,^  I 
see  no  reasonable  objection,  and  the  principles  that  I  have  here  been 
referring  to  are  fully  explained  and  acted  on  by  the  Master  of  the 
Rolls  in  the  case  of  Colyer  f>.  Finch. ^  It  is  impossible,  therefore,  to 
suppose  that  he  intended  to  lay  down  anything  in  the  case  of  the 
Attorney-General  v.  Wilkins,*  which  is  at  variance  with  the  ordinary 
rules  of  the  court  as  I  have  already  explained  them,  or  which  could 
give  countenance  to  the  argument  that  has  been  raised  before  me  at 
the  bar. 

I  have  consequently  no  difficulty  in  holding  that  the  decree  of  his 
Honor  the  Vice  Chancellor  is  right  upon  the  grounds  on  which  he  placed 
it  in  the  court  below,  and  that  also  it  would  have  been  right  if  he  had 
sonsidered  the  grounds  which  have  been  urged  before  me  in  support  of 
this  petition  of  reliearing.  I  therefore  affirm  the  decree  and  dismiss 
the  petition  of  rehearing ;  but  inasmuch  as  the  plaintiff  sues  in  forma 
pauperis^  of  course  it  umst  be  dismissed  without  costs.* 


NEWMAN   V.    NEWINIAN. 
In  Chanceut,  befoue  North,  J.,  Jankaky  12,  1:3,  14,  l.'>,  19,  1885. 

[Reported  in  28  Chancerij  Division,  674.] 

In  the  year  1801)  a  lease  of  the  New  Dynevor  Colliery  was  made  to 
certain  persons,  one  being  Micliaol  Lewis  Hrown,  who  took  tiirec-cighths 
of  the  colliery,  as  to  one  moiety  tiiereof  for  himself,  and  as  to  the  other 
moiety  in  trust  for  Kdwin  Newman. 

»  17  Beav.  2S5.  2  19  Beav.  .500. 

"  Thore  i«  lir-lifvnd  to  bo  a  Htroiip  analofjy  Jtotwpoii  an  of|iiit;ilplc  ront  rliarf^o  aiul  .1 
partial  ;u'<Hif;nmoiit  of  a  rlm^p  m  ariion.  Accordinyly,  if  a  partial  a.'i.sipiior  snli.tf(|iipntly 
purport.H  to  f*pn  the  entire  claim  to  a  homt/idr  purchiiser,  the  latter,  ns  in  the  jirincijjal 
i'a.He,  will  lio  po.stjKinfd  to  tlio  prior  iiinimlirancpr.  Tliis,  it  is  snlnniitnil,  i.s  tlio  true 
pround,  rbonfjh  n(»t  ontonsililo  ground,  of  the  decision  in  Fairliank.s  c  Sargpnt,  104 
N.  Y.  low,  1 17  X.  Y.  320.  —  Ed. 


836  NEWMAN   V.    NEWMAN.  [ciIAr.  III. 

Tn  1S71  Brown  liatl  made  largo  advances  for  the  colliery  and  to 
Kdwin  Newman,  and  pressed  for  payment.  By  ti  deed  made  in  July, 
1871,  after  reciting  that  Edwin  Newman  had  a  policy  on  his  life  for 
£3,000,  and  had  assigned  that  and  also  his  share  in  the  colliery  to  \\\s 
wife's  mother,  Sophie  Storie  Armstrong,  by  way  of  security  for  £5,700, 
it  was  witnessed  tliat  INIrs.  Armstrong  and  Edwin  Newman  assigned 
the  policy  and  Edwin  Newman's  one  moiety  of  three  eighths  of  the  col- 
liery to  Brown  by  way  of  security  for  the  repayment  to  him  of  £3,180, 
and  subject  thereto  for  Mrs.  Armstrong. 

Edwin  Newman  was  dead,  and  a  sum  representing  the  £3,000  due 
under  the  policy  had  been  paid  into  Court.  Brown  had  sold  the  shares 
in  the  colliery,  and  had  a  balance  of  £850  arising  from  the  sale. 

Tliis  action  was  brought  by  Violet  Ida  Newman,  one  of  the  children 
of  Edwin  Newman,  against  Brown  and  against  the  administrator  of 
Mrs.  Armstrong  (who  was  dead),  claiming  as  against  Brown  that  a 
certain  sum  of  £5,700  had  priority  over  his  charge  on  the  colliery 
shares  and  on  the  policy  mone}' ;  and  that  he  might  be  declared  a 
trustee  of  the  colliery  shares  as  to  the  £5,700.  The  plaintiff's  case 
was  as  follows  :  — 

By  an  indenture  of  settlement  dated  the  24th  of  September,  185G, 
made  on  the  marriage  of  Edwin  Newman  with  Mrs.  Armstrong's  daugh- 
ter, certain  funds  were  assigned  to  three  trustees  on  the  usual  trusts  for 
Mrs.  Newman,  Edwin  Newman,  and  their  children,  of  whom  the  plain- 
tiff, Violet  Ida  Newman,  was  one. 

The  other  trustees  died  or  retired,  and  in  18G6  Mrs.  Armstrong  was 
appointed  sole  trustee.  The  dealings  as  to  the  trust  funds  between 
Mrs.  Armstrong  and  Edwin  Newman  were  very  complicated  and  ob- 
scure, but  it  was  clear  that  Edwin  Newman  had  borrowed  more  than 
£5,000  of  the  trust  money  from  Mrs.  Armstrong ;  and,  according  to 
the  case  of  the  plaintiff,  the  £5,700  due  by  Pklwin  Newman  to  Mrs. 
Armstrong,  as  stated  in  the  mortgage  to  Brown,  was  the  fund  so  bor- 
rowed and  was  subject  to  the  trusts  of  the.  settlement ;  and  then  the 
shares  in  the  colliery  and  the  policy  had  been  assigned  by  Edwin  New- 
man to  j\Irs.  Armstrong  by  wa}^  of  securit}'  for  the  trust  money  which 
had  been  advanced  by  her  to  Edwin  Newman. 

Brown  alleged  that  he  took  his  charge  without  any  notice  whatever 
of  the  settlement,  and  that  he  thought  and  still  believed  that  the  £5,700 
was  the  money  of  Mrs.  Armstrong. 

Barber^  Q.  C.,  and  7?.  C  Dobhs,  for  the  plaintiff. 

W.  Pearson,  Q.  C,  and  B.  B.  Eor/ers,  for  Brown. 

Lemon,  and  Hatfield  Green,  for  other  defendants. 

North,  J.,  after  fully  stating  the  complicated  facts,  and  referring 
to  the  obscurity  of  the  transactions,  continued  : — 

Now  out  of  that  state  of  facts  the  questions  between  the  parties  arise 
in  this  way.  First,  as  regards  the  shares  in  the  colliery,  and,  secondly, 
as  regards  the  policy  moneys,  which  stand  in  rather  different  posi- 


SECT.  I.]  NEWMAN   V.   NEWMAN.  337 

tions.^  As  to  the  colliery,  the  question  is  whether,  assuming  the  £5,700 
to  have  been  trust  money,  Brown's  charge  is  prior  or  subsequent  to  the 
charge  of  the  £5,700.  It  is  quite  clear  that  Brown  had  no  notice  whatever 
of  the  money  being  trust  money,  if  in  fact  it  was.  [His  Lordship  then 
referred  to  some  of  the  evidence.]  Therefore  it  comes  to  this.  Browa 
has  got  the  legal  estate,  and  he  had  it  prior  to  the  charge  in  1871.  He 
took  that  security  without  notice  of  any  prior  charge.  But  then  it  is 
said  that  there  was  already  a  charge  in  favor  of  Mrs.  Armstrong,  and 
that  the  plaintiff  for  whom  she  was  trustee  and  who  claims  under  her 
has  a  charge  prior  to  Brown's.  Brown's  answer  to  that  is  :  "I  have 
the  legal  estate  ;  and  I  had  no  notice  of  any  trust  actual  or  construc- 
tive. There  was  nothing  whatever  to  put  me  upon  any  inquiry.  I 
dealt  with  persons  who  represented  this  property  to  be  their  own,  and 
I  had  no  notice  of  any  sort  tliat  either  of  them  was  a  trustee.  I  have 
clearly  got  a  good  charge  and  I  have  the  legal  estate.  I  cannot  now 
be  told  that  my  interest  is  to  be  postponed  to  the  plaintiff's  when  I  had 
the  legal  estate  and  dealt  with  the  only  persons  I  knew  or  could  know." 
It  appears  to  me  that  even  if  the  £5,700  is  trust  money  he  is  entitled  to 
succeed  upon  that  defence. 

The  cases  in  which  a  second  equitable  incumbrancer  without  notice 
has  got  in  the  legal  estate  and  has  protected  himself  are  very  numerous 
and  well-known.  But  it  is  said  that  the  present  does  not  come  within 
these  cases,  because  Brown  was  the  trustee  of  the  leasehold  interest, 
and  lield  it  in  trust  for  the  real  owners  whoever  they  were  ;  and  that 
he  cannot  be  heard  to  say  that  his  own  charge  which  was  subsequent 
in  date  ought  to  have  priority  over  the  charges  of  the  persons  for  whom 
he  is  trustee.  But  he  is  trustee  without  any  notice  whatever  of  any 
charge,  and  he  dealt  with  persons  who  were  treated  throughout  as  the 
only  persons  interested  in  the  estate.  Is  there  anything  to  prevent  a 
trustee  from  deaUng  with  his  only  known  cestui  que  trust,  and  then 
taking  advantage  of  the  legal  estate  whicli  he  does  not  get  in  after- 
wards but  has  already. 

There  are  two  cases  to  which  I  will  refer.  One  is  Phipps  v.  Love- 
grove.*  The  Lord  Justice  James,  sitting  for  Vice-Chancellor  Wick- 
ens,  says  in  his  judgment :  *  "  The  trustees  at  the  request  and  by  the 
direction  of  the  only  ceatais  que  trufit  of  whom  they  had  any  notice  or 
knowledge  whatever,  dealt  with  tlie  funds  ;  and  it  appears  to  me,  upon 
more  than  one  ground,  that  any  person  claiming  under  the  Sdmecestuia 
que  trust  has  no  right  to  make  any  claim  against  them.  It  is  a  rule 
and  princii)le  of  this  Court,  and  of  every  Court,  I  believe,  that  where 
there  is  a  chose  in  action,  whether  it  is  a  debt  or  an  obligation,  or 
a  trust  fund,  and  it  is  assigned,  the  person  wlio  hoMs  that  dclif  or 
obligation,  or  has  undertaken  to  hold  tlie  trust  fund,  has,  as  against 
the  assignee,  exactly  the  same  equities  that  lie  would  have  as  against 

1  So  much  of  thfi  cnno  as  relates  to  the  policy  moneys  is  omitted,  as  wcILas  the  argu- 
ments of  counsel.  —  Kd. 

2  Law  Uep.  16  Eq.  80.  8  Law  Rep.  16  Eq.  88. 

22 


33S  NEWMAN   V.   NEWMAN.  [CHAP.  III. 

the  assiguor.  Down  to  tlio  date  at  which  the  notice  of  asyignuiont  was 
given  to  the  trustees,  the  trustees  were  at  liberty  to  deal  with  the  fund, 
and  to  have  equities  created  in  their  favor  by  the  cestuia  que  trust,  until 
they  received  notice  that  some  other  person  had  come  in  and  displaced 
those  equities.  An  insurance  ollice  might  lend  money  upon  a  policy  of 
insurance  to  a  person  who  had  insured  his  life,  notwithstanding  any 
previous  assignment  by  him  of  the  policy,  of  which  no  notice  had  been 
given  to  them.  Trustees  who  have  got  a  legal  estate,  or  an  estate  of 
any  kind,  either  money  or  land,  may  lend  money  to  the  cestuis  quejrust, 
and  get  a  beneficial  interest  in  the  trust  propertj-,  if  they  have  no  notice 
tliat  there  have  been  any  prior  incumbrances.  They  have  got  the  legal 
estate  and  they  have  got  the  legal  right ;  they  have  therefore  got,  in 
respect  of  the  charge  created  in  their  favor,  before  they  have  got  any 
notice  of  anything  else,  a  right  to  retain  that  which  the  law  has  given 
them."  Now  it  is  admitted  that  this  is  quite  in  point,  but  it  was  said 
that  the  passage  referring  to  trustees  who  have  got  the  legal  estate  is 
merely  an  illustration  by  way  of  dictum,  and  is  not  necessary  for  the  de- 
cision of  the  case.  To  a  certain  extent  that  is  true,  but  it  is  an  illus- 
tration in  point  and  bears  upon  what  the  learned  judge  decided,  and  it 
shows  his  opinion  upon  the  matter  to  be  that  a  trustee  who  had  got  the 
legal  estate  could  deal  with  the  cestui  que  trust  by  buying  his  interest  or 
making  an  advance,  and  could  maintain  that  charge  against  a  prior  in- 
cumbrancer on  the  ground  that  he  held  the  legal  estate,  provided  always 
that  it  was  without  notice. 

The  case  of  Browne  v.  Savage  ^  seems  to  me  very  much  in  point, 
though  it  does  not  refer  to  the  legal  estate.  There  Kindersley,  V.  C, 
decided  that  an  assignment  by  one  trustee  to  another  gave  that  trus- 
tee notice,  and  that  at  any  rate  during  the  life  of  that  trustee  the  notice 
so  given  was  all  that  was  necessary,  and  so  it  has  been  held  in  subse- 
quent cases,  of  which  Willes  v.  GreeuhilF  is  one.  The  fact  tliat  the 
trustee  to  whom  the  assignment  was  niade  gave  no  notice  till  after- 
wards to  the  third  trustee  was  immaterial.  It  was  held  that  the  trustee 
was  competent  to  deal  with  the  cestui  que  trust,  and  to  get  a  good  charge 
in  priority  to  other  charges  of  which  he  had  no  notice,  though  he  was 
trustee  of  the  fund  for  the  owners  of  it,  including  persons  in  favor  of 
whom  charges  had  been  made  of  which  notice  had  not  been  given. 

Some  little  doubt  has  been  thrown  upon  that  case  by  the  remark  of 
Lord  St.  Leonards  in  a  note  to  Vendors  and  Purchasers.^  He  says : 
"  There  is  a  mistake  in  the  dates;  they  do  not  agree  with  the  priori- 
ties ordered."  But  I  have  looked  very  carefully  at  the  case,  and 
it  seems  to  me  that  the  note  by  Lord  St.  Leonards  is  inaccurate,  and  he 
seems  to  have  confused  the  notices,  and  to  have  thought  that  the  notice 
given  by  the  second  trustee  to  the  third  on  the  30th  of  July,  1858,  was 
the  ruling  notice,  whereas  the  true  ruling  notice  as  regards  the  mort- 
gage of  1858  by  Savage  to  the  second  trustee  was  not  of  that  date,  but 

1  4  Drew.  635.  2  29  Beav.  376. 

8  14th  ed.  p.  379. 


SECT.  I.]  IN   RE   COLEMAN.  339 

was  the  assignment  itself,  which  was  dated  the  29th  of  March,  1858 
It  seems  to  me  that  the  decision  of  Kindersley,  V.  C,  was  quite  accu- 
rate, and  that  the  priorities  were  given  according  to  what  he  decided  to 
be  the  right  order  of  the  notices.  It  appears  to  me,  therefore,  upon 
these  autliorities,  that  the  trustee  is  entitled  to  hold  the  leasehold  inter- 
est as  security  for  what  is  due  to  him  in  priority  to  any  claim  by  any 
cestui  que  trust,  even  assuming  the  £5,700  to  have  been  trust  money. ^ 


In  re  COLEMAN. 
HENRY   V.   STRONG. 

In  the  Court  of  Appeal,  August  10,  1888. 

[Reported  in  39  Chancery  Division,  443.] 

Alfred  Coleman,  by  will  dated  the  5th  of  August,  1875,  gave  his 
residuary  estate  to  trustees  upon  trust  to  pay  the  income  to  his  wife 
during  widowhood,  "  but  in  the  event  of  her  death  or  second  mar- 
riage then  I  direct  my  said  trustees  to  apply  such  rents,  interest,  divi- 
dends, and  annual  proceeds  in  and  towards  the  maintenance,  educa- 
tion, and  advancement  of  my  children  in  such  manner  as  they  shall 
deem  most  expedient  until  the  youngest  of  my  said  children  attains 
the  age  of  twenty-one  years,  and  on  his  or  her  attaining  tliat  age,  then 

I  direct  my  said  trustees  to  distribute  the  whole  of  my  said  estate  be- 

1  It  is  on  the  same  principle  that  where  a  first  mortj^ac^e  is  given  to  secure  present 
antl  future  ailvances,  the  mortgagee,  wlio  makes  subsequent  advances  in  ignorance  of 
an  intervening  second  mortgage,  is  entitled  to  repayment  of  the  subse(iuent  advances 
in  priority  to  the  intervening  mortRagec.  Collet  v.  Do  Gels,  Talbot,  6:) ;  Rarnett  c. 
Weston,  12  Ves.  130 ;  Wilmot  v.  Pike,  5  Hare,  14  ;  IIoj)kinson  v.  Holt,  9  II.  L.  C.  514 
(semh/e)  ;  Young  ?'.  Young,  L.  R.  3  Eq.  801  ;  Liverpool  Co.  v.  Wilson,  7  Ch.  507  ; 
Bradford  Co.  v.  Rriggs,  12  App.  Cas.  29,  29  Ch.  D.  149;  Union  Bank  v.  Royal  Hank, 
12  App.  Cas.  53  ;  Shirras  ik  Caig,  7  Cranch,  34  ;  lif  Ilaake,  7  N.  H.  R.  61  ;  2  Sawy. 
C.  C.  23,  s.  c. ;  Tapia  v.  Demantini,  77  Cal.  383 ;  Iloswell  i.-.  doodwin,  31  Conn.  74 ; 
Frye  v.  Illinois  Bank,  11  111.  307  {seinhlf)  ;  Rrinknieyer  r.  Rrowneller,  55  Ind.  487 
{semhie)  ;  Nelson  v.  IJoyce,  7  J.  .1.  Marsh.  401  ;  Wilson  v.  Ru.s.^ell,  13  Md  404  (spmble); 
Ladue  v.  Detroit  Co.,  13  Mich.  380  (semhlc)  ;  Ward  i-.  Cooko,  17  N.J.  Eq.  93  ;  Truscoft 
V.  King,  f)  Barb.  346;  2  Sold.  100,  ».  c. ;  Ackerman  v.  Ilun.sicker,  85  N.  Y.  43;  Farr 
V.  Nichols,  132  N.  Y.  327  ;  Spader  v.  Lawler,  17  Ohio,  371  {.lemhle) ;  Bank  of  Mont- 
gomery Co.'s  Appeal,  30  Pa.  170;  ATcD.aniel^  ;•.  Colviti,  10  Vt.  300. 

The  rule  is  the  same  when  an  eqiiitaMo  interest  is  mortgagofl  to  secure  present  and 
future  advances,  and  a  second  mortgage  is  given  after  the  first,  hut  before  the  subse- 
quent advance.  Calisher  v.  Forbes,  7.Ch.  109  ;  Loudon  Co.  v.  Ratcliffe,  6  App.  Cas. 
722  {semhie)  ;  Re  McNamara,  L.  R.  13  Ir.  158. 

One  who  takes  negotiable  paper  before  maturity  as  collateral  security  and  makes 
further  .idvances  after  the  maturity  of  the  bill,  may  hold  the  paper  for  all  his  a<lvaii(e3 
as  against  equitable  defences.     Spering's  App.,  10  Barr,  235;  Bancroft  t;.  McKnight, 

II  Rich.  663.  —Ed. 


340  IN   EE  COLEMAN.  [CIIAI'.  III. 

tweeu  my  snicl  cbildren  in  such  shares  aud  proportions  as  ray  said  wife, 
if  then  living,  shall  by  deed  or  will  appoint,  or  if  dead  then  equally 
between  all  my  children  then  living,  the  shares  of  any  females  to  be 
for  their  sole  aud  separate  use,  and  free  from  the  control,  debts,  or  en- 
gagements of  any  husband." 

The  testator  died  on  the  17th  of  May,  1880,  leaving  a  wife  and 
four  children.  The  widow  died  in  May,  1884,  without  exercising  the 
power  of  appointment.  At  her  death  two  of  the  children,  of  whom 
John  Soy  Coleman  was  the  eldest,  had  attained  twenty-one.  The 
other  two  were  minors  at  the  time  of  these  proceedings,  the  youngest 
being  in  the  seventh  year  of  his  age  at  the  widow's  death. 

On  the  13th  of  April,  1886,  John  Soy  Coleman,  who  was  resident 
in  Australia,  sold  and  assigned  absolutely  to  David  Henry,  "  all  and 
singular  the  part  or  share,  and  all  the  income,  property,  moneys,  se- 
curities, estates,  and  interests  to  which  the  said  J.  S.  Coleman  was  or 
is  entitled  to,  or  which  lie  may  at  any  time  hereafter  become  entitled 
to  under  the  said  will  of  his  said  father,  the  said  Alfred  Coleman,  de- 
ceased, or  in  amy  other  manner  howsoever  by  reason  of  his  decease, 
and  all  stocks,  funds,  and  securities  in  or  upon  which  the  same,  or 
any  part  thereof,  were  or  are,  or  is  now,  or  shall  or  may  at  any 
time  hereafter  be  invested,  and  all  interest  to  become  due  in  respect 
thereof." 

From  the  death  of  the  widow  the  trustees  had  applied  the  income  in 
equal  shares  for  the  benefit  of  the  four  children  paying  one-fourth 
directly  to  each  of  the  two  adults.  In  June,  1886,  formal  notice  of 
the  above  assignment  was  given  to  the  trustees,  with  a  request  by 
D.  Henry  and  by  J.  S.  Coleman  that  the  payments  might  thenceforth 
be  made  to  Henry.  The  trustees  were  advised  not  to  make  any  fur- 
ther payments  in  respect  of  J.  S.  Coleman  without  the  sanction  of  the 
court.  They  continued  to  apply  three-fourths  of  the  income  for  the 
benefit  of  the  children  other  than  J.  S.  Coleman,  and  kept  the  remain- 
ing fourth  in  hand. 

In  March,  1887,  Henry  took  out  an  originating  summons  to  have  it 
decided  whether  the  gift  of  capital  to  the  children  was  contingent  on 
their  being  alive  at  the  period  of  distribution,  aud  if  so,  whether 
J.  S.  Coleman  had  an  interest  in  the  income  which  would  pass  by  his 
assignment. 

The  summons  was  heard  before  Mr.  Justice  North  on  the  8th  of 
February,  1888. 

The  order  as  drawn  up  declared  that  no  child  of  the  testator  is  en- 
titled, prior  to  the  time  when  the  youngest  of  his  children  attains  the 
age  of  twenty-one  years,  to  payment  of,  or  has  a  transmissible  inter- 
est in,  one-fourth  share  or  any  part  c^f  the  income  of  the  residuary 
estate  of  the  said  A.  Coleman,  or  the  proceeds  thereof,  and  that  the 
plaintiff  has  no  claim,  present  or  future,  prior  to  that  event,  against 
the  trustees  of  the  will  of  the  said  A.  Coleman  for  income,  and  that 
the  trustees  are  entitled  to  employ  the  income  for  the  benefit  and  main- 


SECT.  I.J  IX   HE   COLEMAN.  341 

tenauce  of  the  children,  iucluding  the  said  J,  S.  Coleman,  at  their  ab- 
solute discretion. 

Ilenr}'  appealed  from  this  decision.  The  appeal  was  hea^d  on  the 
10th  of  August,  1888. 

Eceritt,  Q.  C,  and  Clayton.,  for  the  appellant. 

Decimus  Sturges,  for  the  infant  children. 

Page,  for  the  trustees.^ 

Cotton,  L.  J.  This  is  an  appeal  from  an  order  of  Mr.  Justice 
North,  and  we  think  that  some  alteration  in  its  terms  is  requisite. 
The  contention  of  the  appellant  was  that  each  of  the  four  children 
took  a  vested  interest  in  one-fourth  of  the  income  till  the  youngest 
child  attained  twenty-one.  I  am  of  opinion  that  no  child  has  a  right 
to  any  share  of  the  income.  The  trustees  have  a  discretion  to^apply 
the  income  for  the  maiuteuancc  of  the  children  in  such  manner  as  they 
think  fit.  This  excludes  the  notion  of  the  children  being  entitled  to 
aliquot  shares.  I  will  assume,  though  I  do  not  decide,  that  the 
trustees  have  no  power  to  exclude  a  child,  but  I  am  clearly  of  opinion 
that  under  this  power  they  could  make  unequal  allowances  for  the 
benefit  of  the  children,  and  might  allow  only  half-a-crown  to  one  of 
them.  This  is  not  a  void  attempt  to  make  shares  given  to  children 
inalienable,  so  as  to  exclude  their  creditors,  it  is  a  power  to  the  trus- 
tees to  give  to  each  child  what  they  think  fit,  and  if  they  cannot  alto- 
gether exclude  a  child  who  has  become  bankrupt  or  assigned  his 
interest,  they  can  allot  to  him  as  little  as  they  think  desirable.  Then 
does  the  assignment  include  every  benefit  which  the  trustees  give  to 
J,  S.  Coleman  out  of  the  income?  I  think  not.  If  the  trustees 
were  to  pay  an  hotel-keeper  to  give  him  a  dinner  he  would  get  nothing 
but  the  right  to  eat  a  dinner,  and  that  is  not  property  which  could  pass 
by  assignment  or  bankrui)tcy.  But  if  tliey  pay  or  deliver  money  or 
goods  to  him,  or  appropriate  money  or  goods  to  be  paid  or  delivered 
to  him,  the  money  or  goods  would  pass  by  the  assignment.  I  think 
that  the  declaration  proposed  by  Lord  Justice  Fry  is  right,  and  I  am 
of  opinion  that  the  trustees  will  not  be  at  lil)erty  to  send  over  money 
or  goods  to  J.  S.  Coleman. 

The  strongest  cases  referred  to  by  the  counsel  of  the  appellant  were 
Green  v.  Spicer,^  and  Younghusband  /'.  Gisborne,^  but  in  those  cases 
the  income  was  directed  to  be  applied  solely  for  the  benefit  of  the  in- 
solvent, which  made  it  his  property,  and  an  attempt  was  then  made  to 
prevent  its  Ijeing  dealt  with  as  his  property  if  he  became  bankrui)t. 
Here  no  property  is  given  to  .1.  S.  Coleman,  btit  only  a  discretion  to 
the  trustees  to  apply  such  part  as  they  think  fit.  of  (he  income  for  his 
benefit.  Tiiis  case,  therefore,  does  not  come  witliin  the  principle  of 
those  cases,  and  I  think  that  the  declaration  proposed  Ity  the  Lord 
Justice  Fry  is  right.* 

Fry  and  Lope.s,  L.J  J.,  concurred. 

1  The  arpfumentB  of  coniiHcl  are  omitted.  —  Ed. 

2  1  KiiHs.  &  My.  Xf5.  8  1  Coll.  400. 
«  Re  Neil,  62  L.  T.  Kop.  649  Accord.  —  Ed. 


342  BELKNAP   V.    BELKNAP.  [CHAP.  IIL 


HENRY   BELKNAP  and  Otiikrs  v.  EDWARD   BELKNAP 

AND  Others^ 

The   Supreme  Judicial  Court,    Massachusetts,    November,    18624 

[Reported  in  6  Allen,  4G8.] 

Bill  in  equity,  praying  for  the  removal  of  Edward  Belknap,  as 
trustee  under  the  will  of  his  father,  aud  that  an  assignment  by  him  of 
his  interest  in  tlie  trust  fund  might  be  declared  void,  and  for  other 
relief. 

At  the  hearing  in  this  court,  before  Hoar,  J.,  it  appeared  that  John 
Belknap  died  in  1856,  and  disposed  of  the  residue  of  his  estate  as 
follows :  — 

"  All  the  rest  aud  residue  of  my  estate,  real,  personal,  and  mixed, 
not  herein  before  devised  and  bequeathed,  I  hereby  give,  devise,  and 
bequeath,  in  trust,  to  my  sons  Edward  Belknap  and  Henry  Bel- 
knap, and  the  survivor  of  them,  and  the  heirs  of  such  survivor,  to  be 
held  in  trust  and  managed  by  them  for  the  following  puri)oses,  to  wit : 
.  .  .  3.  To  divide  the  remaining  income,  after  the  payment  above  des- 
cribed, into  four  equal  parts,  for  the  use  of  my  four  children,  Edward, 
Jane,  Heniy,  aud  George  ;  the  parts  for  Edward,  Henry,  and  Jane  to 
be  paid  to  them,  and  that  of  George  to  be  paid  to  his  mother,  for  his 
use  under  her  direction  during  his  minority  ;  after  he  becomes  of  age, 
to  be  paid  to  himself."  Then  followed  provisions  for  the  disposition 
of  the  estate  after  the  decease  of  his  widow,  which  are  not  now 
material. 

By  codicils  to  this  will  Edward  Belknap  was  left  the  sole  trustee. 
He  accepted  the  trust  in  June,  18r>6,  gave  a  bond  according  to  law, 
and  received  a  large  amount  of  property,  real  and  personal,  aud,  after 
the  settlement  of  his  second  account,  absconded,  having  appropriated 
to  his  own  use  a  large  portion  of  the  trust  estate.  On  the  2d  of  April, 
1859,  being  largely  indebted  to  the  Union  Bank,  in  New  York,  for 
money  borrowed,  he  executed  to  them  an  assignment,  by  which  he 
purported  to  transfer  "  the  share  of  the  estate,  both  real  aud  personal, 
of  my  late  father,  John  Belknap,  which  by  the  terms  of  my  said  father's 
will  can  in  any  event  vest  in  me,  as  one  of  his  heirs  or  devisees,  and 
all  my  right,  title,  and  interest  therein,  including  any  accumulations 
made»  or  hereafter  to  be  made  of  the  income  of  said  estate,"  This 
assignment  was  made  as  additional  collateral  security,  the  bank  not 
being  satisfied  with  what  they  then  had.  The  greater  part  of  that  in- 
debtedness is  still  unpaid.  It  did  not  appear  w^hether  he  was  a  defaulter 
to  his  father's  estate  at  the  time  of  executing  the  assignment;  but  it 
did  appear  that  the  officers  of  the  bank  had  no  knowledge  or  reason  to 
believe  that  no  [a?J  default  or  misapplication  of  the  funds  held  under 
the  will  had  then  been  made. 


SECT.  I.]  BELKNAP   V.   BELKNAP.  343 

As  against  Edward  Belknap,  the  bill  was  taken  for  confessed  ;  aiad 
the  Union  Bank  alone  opposed  the  granting  of  the  relief  sought  for. 
A  receiver  was  appointed  to  take  charge  of  the  estate,  pending  the 
suit ;  and  it  appeared  by  his  accounts  that  the  share  of  the  income,  and 
the  commissions,  to  which  Edward  might  have  been  entitled,  if  he  had 
not  been  a  defaulter,  had  been  reserved.  It  was  contended,  in  behalf 
of  Henry  Belknap,  that  this  share  of  the  income  and  the  commissions 
ought  to  be  applied  to  make  up  the  amount  of  the  principal  which  has 
been  misapplied  by  Edward  ;  and  other  parties  contended  that  the  same 
should  })e  applied  first  to  make  up  the  deficiency  in  the  income. 

The  case  was  reserved  for  the  determination  of  the  whole  court. ^ 

A.  H.  Fiske  &  G.  Putnam,  Jr.,  for  the  plaintiffs. 

W.  R.  P.  Washburn,  for  the  Union  Bank. 

HoAK,  J.^  We  shall  have  no  occasion  to  decide  the  question  which 
has  been  argued  ni  this  case,  whether  the  assignment  by  Edward  Bel- 
knap to  the  Union  Bank  was  of  any  validity  whatever ;  because  it  is 
very  clear,  upon  principle  and  authority,  that  the  estate  in  the  hands 
of  the  trustee  is  bound  in  equity  to  discharge  the  legacies  to  the  other 
cestuis  que  trust,  before  he  or  his  assigns  can  claim  any  part  of  it,  if 
the  estate  has  been  diminished  by  a  violation  of  his  duties  as  trustee. 
The  ecpiities  of  those  to  Avhom  he  is  bound  by  his  assumption  of  the 
trust  are  prior  and  superior  to  any  which  he  can  create  in  the  trust 
fund  by  contract.  As  it  was  held  in  Fuller  v.  Knight,  6  Beav.  205,  a 
trustee  cannot  bargain  away  his  power  to  make  good  a  deficiency  in 
the  trust  fund,  arising  from  his  breach  of  trust. 

The  doctrine  is  very  succinctly  stated  in  Morris  v.  Livie,  1  Y.  &  Coll. 
380,  of  which  the  marginal  note  is  as  follows  :  "  If  an  executor  assigns 
his  reversionary  legacy,  the  assignee  takes  it  subject  to  the  equities 
which  attached  to  the  executor ;  and  therefore  if  the  latter,  though 
suV)S(Hiiiently  to  the  assignment,  wastes  the  testator's  assets,  the 
assignee  cannot  receive  the  legacy  till  satisfaction  has  been  nuide  for 
the  breach  of  trust." 

That  case  was  very  elaborately  argued  and  carefully  considered,  anci 
seems  more  directly  in  point  than  any  other  wliich  has  been  cited. 
Though  not  binding  upon  this  court  as  an  authority,  we  are  satisfied 
that  it  rests  ui)on  sound  principles  of  equity. 

A  distinction  has  been  strongly  pressed  by  the  counsel  for  the  Union 
Bank,  supposed  to  arise  from  oiu'  statute  provisions  wliidi  require  se-' 
curity  to  be  given  by  executors  and  trustees  for  tlie  faithful  perform- 
ance of  tiieir  trusts.  But  it  is  dillicult  to  sec  any  ecpiity  which  tiio 
assignee  of  a  trust  fund  wiiich  is  to  remain  in  the  hands  and  under  the 
nuinagement  of  the  assignor  can  have  against  the  sureties  on  his  oflicial 
bond.  Tlie  assignor  certainly  has  no  claim  on  the  surety  to  make  good 
to  liini  any  loss  by  his  own  unfaithfulness.     If  there  were  no  assign- 

'  Tlio  Htatomnnt  of  facts  haa  been  sliglitly  abridged,  and  tho  citations  of  counsel 
are  oinitteil.  —  Ed. 

^  BuiELOW,  C.  J.,  did  not  sit  in  this  case. 


344  BF.LKNAP   V.   BELKNAP.  [CIIAP.  III. 

ment,  equity  would  obviously  require  the  trustee  to  pay  everything  due 
to  others  beuelieiuUy  interested  in  the  fund,  if  the  fund  were  diuiiuished 
by  his  dishones?ty,  before  ap[)lyiug  any  further  part  of  it  to  his  own  use. 
And  there  seems  to  be  no  good  reason  why  the  assignee  should  be  put 
in  a  better  condition  than  the  assignor.  It  would  be  in  etfeet  to  allow 
the  assignor  to  take  to  his  own  use  his  share  of  the  trust  fund,  and  by 
contract  with  a  third  party  to  east  upon  his  otlicial  surety  the  burden 
of  making  it  good  to  a  purchaser. 

The  Union  Bank,  when  the}'  took  the  assignment,  knew  that  it  was 
of  a  fund  held  by  P^dward  Belknap  in  trust,  and  which  was  to  continue 
under  his  care  and  management.  They  took  it  subject  to  all  the  risks 
of  such  a  condition  of  things  ;  subject  to  all  equities  in  favor  of  the 
other  cestuis  que  trust,  arising  from  the  fact  that  the  assignor  was  trus- 
tee y  and  they  acquired  no  equitable  rights  against  the  sureties  in  the 
probate  bond,  because  their  grantor  had  none  which  he  could  convey. 

It  does  not  appear  that  the  defalcation  by  Edward  Belknap  is  equal 
to  the  share  of  the  estate  of  which  he  is  entitled  to  the  income.  If  it 
is  not,  it  is  equally  for  the  interest  of  the  bank,  and  of  those  who  may 
be  entitled  to  the  reversionary  interest,  if  he  should  not  survive  his 
mother,  that  his  share  of  the  income  should  be  applied  to  make  good 
the  capital. 

The  decree  will  therefore  be,  that  the  assignment  shall  have  no  force 
or  effect  against  any  persons  beneficially  interested  in  the  estate,  other 
than  Edward  Belknap. 

The  commissions  which  have  been  retained  as  belonging  to  Edward 
Belknap  are  to  be  applied  first  to  the  payment  of  the  charges  and  ex- 
penses of  the  receiver.  If  there  is  any  part  remaining,  it  is  next  to  be 
appFied  to  the  costs  of  the  suit ;  and  the  remainder,  if  any,  is  to  be 
distributed  as  income. 

The  income  belonging  to  Edward  Belknap  must  be  applied  to  make 
good  the  deficiency  in  the  trust  fund  which  he  has  caused.  He  must 
be  removed  from  the  trust,  and  a  new  trustee  appointed,  and  the  case 
sent  to  a  master  to  take  an  account ;  and  all  other  questions,  including 
that  of  the  ultimate  rights  of  the  Union  Bank  under  the  assignment, 
except  so  far  as  already  determined,  be  reserved. 


SECT,  n.]  ANONYMOUS.  345 


SECTION   II. 

By  Death. 

(a)  Death  op  the  Tbustee. 

ANONYMOUS. 

In  the ,  Trinity  Term,  1468. 

[Reported  in  Year  Book,  8  Edward  IV.,  folio  6,  placitum  l.^] 

And  it  was  moved  whether  a  subpoena  would  lie  against  an  executor 
or  heir.  And  Choke,  J.,  said  that  he  had  formerly  sued  a  subpa'na 
against  the  heir  of  a  feoffee,  and  the  matter  was  long  debated.  And 
the  opinion  of  the  Chancellor  and  the  justices  was  that  it  did  not  lie 
against  an  heir,  and  so  he  sued  a  bill  to  Parliament. 

Fairfax.  This  matter  is  a  good  stem  for  discussion  when  the  others 
come,  &C.'' 

^  Ellesmere,  Office  of  Chancellor,  86,  pi.  26,  s.  c,  to  which  report  the  author  adds : 
"  Note  that  it  must  he  intended  that  the  heir  had  not  this  land,  but  that  the  laud  was 
sold  before  by  the  feoffee  to  a  stranger;  for  if  the  heir  had  the  laud,  he  is  liable  to 
the  trust  as  well  as  the  feoffee."  See  also  Cary,  16  ;  Ellesmere,  Office  of  Chancellor, 
94,  pi.  49.  —  Ed. 

"^  "The  Chancellor  said  (in  1482)  that  it  is  the  common  course  in  the  cliancery 
to  grant  [subpuuna  ?]  against  an  obligation  and  so  upon  a  feoffment  in  trust  when  the 
heir  of  the  feoffee  is  in  by  descent  or  otherwise,  for  we  find  records  of  this  in  the  chancery. 
HusE,  C.  J.  When  I  first  came  to  court,  thirty  years  ago,  it  was  agreed  in  a  ca.«e  by  all 
the  court  that  if  a  man  had  enfe<jifed  another  in  trust,  if  the  latter  died  seised  so  tliat 
liis  heir  was  in  descent,  that  then  no  subpa-na  would  lie  ;  and  there  is  great  reason  why 
tliis  should  be  so,  for  if  by  means  of  a  subjxi'na  you  may  disprove  a  descent  by  two 
proofs  in  chancery,  you  may  disprove  twenty  descents,  which  is  contrary  to  reason  and 
conscience.  And  therefore  it  seems  to  mo  less  of  an  evil  to  make  him  who  suffers  his 
feoffee  to  die  seised  of  his  land,  lose  it,  than  to  disinherit  several  by  proofs  in  tiie  chan- 
cery. ...  To  which  the  Chancellor  .sai<l,  tlien  it  is  great  fully  to  enfeoff  others  of 
my  land,"  &c.     Y.  B.  22  Ed.  IV.  fol.  6,  pi.  18. 

"  V'avasoi'r,  .1.,  saiil  (in  I.'iOl )  that  the  subpncna  commenced  in  the  time  of  Eihvard 
III.,  Imt  this  Wius  always  against  the  fiioffce  upon  confidence  himself,  for  against  his 
heir  the  sul>i)aiia  w;is  never  allowed  until  tlie  time  of  Henry  VI.,  and  in  this  point  the 
law  w.'w  changed  by  Fortescue,  C.  J."     Keil,  42,  pi.  7. 

"  Note,  th.at  a  subpa-na  lies  against  the  heir  of  the  feoffee  who  survives."  Fitzh. 
Abr.  Subp(tna,  pi.  14,  citing  Y.  M.  14  Kd.  IV.  (1474). 

It  seems  almost  superfluous  to  state  at  the  present  day  that  the  heir  of  an  intestate 
trustee  takes  the  legal  title  to  trust  property  subject  to  the  trust.  Fleeming  v.  Ilowden, 
L.  II.  1  Sc.  App.  .172;  Waggener  u.  Waggcner,  3  Monr.  .')42  ;  Rloom  r.  Hag(Ky.  1H!U), 
16  S.  W.  R.  714  ;  Drnid  Cf).  v.  Oettingcr,  .VJ  Md.  46  ;  Harlowe  r.  Cowdrcy,  1()'.»  Mass. 
183  ;  Hook  V.  I)yer,47  Mo.  214.  2I«  ;  Schenck  v.  Schenck,  16  N.  J.  Erp  174  ;  Zabriskie 
i^.  Morris  Co.,  33  N.  J.  Eq.  22  ;  Woodruff  r.  Woodruff,  44  N.  J.  Ivp  349  ;  Craves  r. 
Trnci)lood,  96  N.  Ca.  49.''> ;  Carlisle's  Ap]).,  9  Watts,  331  ;  Hard's  App.,  3  Watts  &  S. 
459;  Hnckabee  r.  Newton,  23  S.  Ca.  291  ;  Watkius  v.  Specht,  7  Cohlw.  .585. 


>46  WESTON   V.   DANVERS.  [CILVP.  IIL 


WESTON  V.  DANVERS. 

In  Chancery,  1584. 

[Reported  in  ToUiill,  105.] 

The  heire  is  not  in  equitie  bound  to  assure  lands  which  his  father 
bargained  and  toolve  money  for.^ 

If  the  trust  property  is  personal,  the  executor  or  administrator  of  the  trustee  takes 
the  legal  title  subject  to  the  trust.     Deering  v.  Torriugton,  1  Salk   79 ;  Wlieatley  v 
Purr,  1  Keen,  551 ;  Trecothick  v.  Austin,  4  Mason,  16,  29;  Veil  v.  Mitchell,  4  Wash 
C.  C.  105;  Dearman  v.   Radcliffe,  5  Ala.   192;  Mauldin  v.  Armistead,  14  Ala.  702 
Powell  V.  Kno.v,  16  Ala.  364;  Bloxham  v.  Cowne,  19  Fla.  163;  Keister  i>.  Howe,  3 
lud.  268 ;  (but    see    Pratt  v.  Cave,  46   Ind.   67  ;)  Thompson  v.   White,  45  Me.  445 
Thomas  v.  Kapff,  6  Gill  &  J.  372  ;  Farrelly  v.  Ladd,  10  All.  127 ;  Childs  v.  Jordan,  106 
Mass.  321;  Schenck  v.  Schenck,  16  N.  J.  Eq.  174;  Dias  v.  Brunell,  24  Wond.  9 
Moses  V.  Murgatroyd,  1  Johns.  Ch.  119;  De  Peyster  v.  Ferrer.s,  11  Paige,  13;  Banks 
V.  Wilkes,  3  Sandf.  Ch.  99 ;  Bucklin  v.  Bucklin,  1  Abb.  App.  242 ;  Bunn  v.  Vaughan,  1 
Abb.  App.  253 ;  Emerson  v.  Bleakley,  2  Abb.  App.  22  ;  Re  Howell,  61  How.  Pr.  179 ; 
Boone  v.  Citizens'  Bank,  84  N.  Y.  83  ;  Wetmore  v.  Hageman,  88  N.  Y.  69 ;  Re  North 
Co.,  63  Barb.  556 ;  De  Peyster  v.  Beckman,  55  How.  Pr.  90 ;  Whitley  v.  Foy,  6  Jones, 
Eq.  34  ;  Quinby  v.  Walker,  14  Oh.  St.  193 ;  Towne  ).'.  Bircliell,  2  W.  N.  (Pa.)  304 ;  Read 
V.  Read,  8  Rich.  Eq.  145. 

If  one  of  several  co-tru.«!tees  dies,  the  legal  title  survives  to  the  others.  Co.  Lit.  113; 
Billingstey  y.  Mathew,  Toth.  168;  Gwilliams  v.  Rowel.  Hard.  204;  Hudson  U.Hud- 
son, Talb.  127,  129;  Atty.-Gen,  v.  Glegg,  Amb.  584;  Warburton  v.  Sandys,  14  Sim. 
622  ;  Read  v.  Godwin,  1  D.  &  Ry.  259 ;  Cape  r.  Bent,  9  Jur.  653  ;  Watson  v.  Pearson, 
2  Ex.  581  ;  Lane  v.  Debenham,  11  Hare,  188;  Wheatley  v.  Boyd,  7  Ex.  20;  Peter  v. 
Beverly,  10  Pet.  532  ;  Sanders  v.  Schnaelzle,  49  Cal.  59;  Richeson  v.  Ryan,  15  111.  13  ; 
Colder  v.  Bressler,  105  111.  419;  Gray  v.  Lynch,  8  Gill,  403  ;  Gutman  v.  Buckler,  69 
Md.  7  ;  Webster  v.  Vandeventer,  6  Gray,  428  (sembk) ;  Stewart  v.  Pettus,  10  Mo.  755; 
Wills  V.  Cooper,  1  Dutch.  137;  Osgood  v.  Franklin,  2  Johns.  Ch.  1,  14  Johns.  527; 
Shook  V.  Shook,  19  Barb.  653;  Shortz  v.  Unangst,  3  Watts  &  S.  45;  Williams  v.  Otey, 
8  Humph.  563 ;  Nichols  v.  Campbell,  10  Grat.  560. 

But  see  contra,  Boston  Co.  v.  Condit,  19  N.  J.  Eq.  394  ;  Miles  v.  Fisher,  10  Oh.  1. —  Ed. 

In  England,  by  a  recent  statute,  on  the  death  of  a  sole  trustee  of  land  the  title  vests 
in  the  personal  representative  like  a  cliattcl  real.  Re  Pilling's  Trusts,  26  Ch.  D.  432  ; 
Lewin,  Trusts  (9th  ed.)  233.  234.  But  see  as  to  copyholds  Re  Mills,  37  Ch.  D.  312.  In 
some  jurisdictions  under  the  circum.<tances  the  title  vests  in  the  court.  McDougald  v. 
Carey,  38  Ala.  320;  Collier  v.  Blake,  14  Ka.s.  250;  Hawley  v.  Ross,  7  Paige,  103; 
Glen  V.  Gibson,  9  Barb.  634;  Millbank  v.  Crane,  25  How.  Pr.  193.  In  others,  al- 
though the  title  goes  to  the  heir,  it  goes  as  at  common  law  to  the  eldest  son,  the  statu- 
tory abolition  of  primogeniture  being  interpreted  as  applying  only  to  the  devolution  of 
property  in  which  the  deceased  was  beneficially  interested.  Bo.ston  Co.  v.  Condit,  19 
N.  J.  Eq.  394;  Jenks  v.  Backhouse,  1  Binn.  91  ;  Martin  v.  Price,  2  Rich.  Eq.  412,  470. 
—  Ed. 

1  Poole  V.  Coxwell  (T.  4  Car.)     "  The  father  entered  into  articles  for  land,  the  son 
no  party,  yet  having  consented,  decreed."  —  Ed. 


SECT.  II.]  STEPHENS  V.   BAILY.  347 


STEPHENS  V.   BAILY. 
In  Chancery,  before  Tyrrell,  J.,  1665. 

[Reported  iii  Nelson,  106.] 

Lessee  for  another  man's  life  contracts  with  the  plaintiff  for  a  sum 
of  money  to  convey  an  estate  to  him,  but  dies  before  the  conveyance 
was  perfected. 

The  defendant,  being  the  heir  of  the  lessee  pur  miter  vie,  enters,  and 
holds  the  land  as  special  occupant ;  and  a  bill  being  brought  against 
him  to  perfect  the  assurance,  he  demurred  to  it,  and  it  was  insisted  for 
him  that  he  was  in  possession  as  an  occupant,  and  so  was  not  privy  to 
his  father  who  made  the  contract. 

Maynard,  on  the  other  side,  argued,  that  an  occupant  is  liable  to  an 
action  of  waste,  and  that  was  the  Dean  of  Worcester's  case  ;  and  that 
an  occupant  was  bound  by  this  agreement  in  equity  :  that  the  plaintiff, 
who  was  out  of  his  money,  ought  to  have  relief  :  that  where  a  man  con- 
tracts for  the  purchase  of  lands,  and  dies  before  the  assurance  is  exe- 
cuted, the  heir  of  the  vendor  stands  trusted  for  the  purchaser,  and  is 
compellable  in  this  court  to  execute  the  estate  to  him,  and  that  trusts 
here  are  of  another  nature  than  uses  are  at  common  law :  that  a  cove- 
nant doth  not  bind  an  occupant  at  law,  because  the  estate  which  he 
possesseth  by  the  occupancy  is  not  assets  in  law  :  but  here  it  is  a 
trust :  that  if  a  copyholder  takes  money,  and  covenants  to  convey,  his 
heir  is  not  bound  at  law,  yet  this  court  will  compel  him. 

So  in  this  case,  the  lands  are  bound  by  the  agreement  in  whose  hands 
soever  they  fall. 

Mr.  Finch,  for  the  defendant,  insisted  that  this  was  not  like  the  case 
of  a  copyholder  ;  for  the  lord  is  bound  to  admit  the  heir,  and  then  he  is 
in  by  descent,  and  he  may  have  an  ejectment  before  admittance ;  't  is 
more  like  the  case  of  one  seised  in  fee,  who  contracts  to  sell,  and  dies 
before  any  assurance,  and  without  luMr,  so  that  his  lands  escheat  to  the 
lord  :  this  court  will  not  compel  that  lord  to  convey  to  the  vendee, 
liut  Maynard  said,  the  reason  was,  because  by  such  conveyance  the 
lord  would  lose  his  ancient  services  which  were  due  before  the  lauds 
escheated. 

To  which  it  was  roplied,  tli.it  this  did  not  seem  to  ho.  a  tolerable 
reason,  because  the  lord  might  make  such  a  conveyance  reserving  the 
ancient  services.  But  it  being  referred  to  Justice  Tyrrell,  he  cer- 
tified, that,  having  advised  with  the  judges,  he  was  of  opinion  that  the 
defendant  ought  to  answer ;  and  so  it  was  ordered.* 

J  In  in  re  Mirholl,  '92,  2  Ch.  87,  the  intcroBt  of  a  ccs/mi  que  trttnl  pur  auter  lu'c  paasod 
to  a  sporifil  orcnpfint. 

An  occupant  seem.')  not  to  have  been  bound  by  a  use.  liro.  Al>r.  I'cff.  ul  Uses,  fol 
338,  pi.  10. —  Ed. 


348  THE  KING  V.   MILDMAY.  [CHAP.  III. 


SIR  WILLIAM  HIX  v.   THE  ATTORNEY  GENERAL 

and  anothek. 

In  the  Exchequer,  Hilary  Term,  1661. 
[Reported  in  Hardres,  176.] 

Upon  English  bill  the  case  was,  that  Sir  William  Hix  put  £100  out 
at  interest  to  the  defendant,  and  took  bond  in  the  name  of  one  Toomes, 
who  afterwards  became  a  Felo  de  se;  and  now  the  plaintiff  was  relieved 
against  the  King  upon  this  trust  in  equity,  upon  the  Statute  of  33  H. 
Till.  c.  39,  sed  qucere  whether  that  statute  extends  to  any  equity  against 
the  King  otherwise  than  in  case  of  pleas  by  way  of  discharge.  But  it 
was  likewise  decreed  in  this  cause  that  the  plaintiff  should  be  saved 
harmless  from  all  others. 


THE  KING  V.  DAME  JANE  ST.  JOHN  MILDMAY,  Lady  ob 
THE  Manor  of  Marwell,  and  WILLIAM  BRAY,  Esquire,  heb 
Steward  of  said  Manor. 

In  the  King's  Bench,  Trinity  Term,  1833. 

[Reported  in  5  Barnewall  Sj-  Adolphus,  254.] 

LiTTLEDALE,  J.,  in  the  course  of  this  term,  delivered  the  judgment 
of  the  court. ^  After  stating  the  mandamus  and  return,^  his  Lordship 
proceeded  as  follows  :  — 

The  question  is,  whether  if  a  copyhold  tenant  surrender  his  estate  to 
the  use  of  another,  and  afterwards  commits  and  is  convicted  of  felony 
before  admittance  of  the  surrenderee,  the  estate  is  by  the  custom  for- 
feited to  the  lord  ? 

The  case  was  argued  l>efore  us  very  elaborately,  and  all  thft  authori- 
ties were  fully  entered  into.  The  court  did  not  at  the  time  feel  greatly 
pressed  by  the  weight  of  those  authorities  ;  but,  as  they  were  numerous, 
and  the  argument  was  chiefly  from  analogy,  we  wished  to  look  into 
them.  After  a  careful  examination  of  them,  we  are  of  opinion  that  the 
estate  is  by  the  custom  forfeited  to  the  lord,  and  that  a  peremptory 

1  See  supra,  70,  n.  1.  —  En. 

2  The  mandamus,  after  reciting  the  custom  of  the  manor  in  regard  to  surrenders, 
stated  that  John  Boyes,  a  tenant  of  the  manor,  surrendered  his  tenement  August  4, 
1830,  to  H.  Southwell;  that  Southwell  demanded  admittance,  but  that  the  defendants 
refused.  The  return  stated  that  Boyes,  after  the  surrender,  was  convicted  of  felony, 
and  that  by  the  custom  of  the  manor  the  tenement  of  a  tenant  convicted  of  felony 
escheated  to  the  lord  of  the  manor.  A  rule  nisi  was  obtained  for  qaashing  this  return 
as  insufficient.  —  Ed. 


SECT.  II.]  THE   KING   V.    MILDMAY.  "  349 

majidaynus  ought  not  to  issue.  It  is  conceded  that,  as  between  the  sur- 
renderor and  the  surrenderee,  the  latter  cannot  be  prejudiced  by  any 
act  done  by  the  former  subsequent  to  the  surrender,  but  is  entitled  to 
be  admitted  to  the  estate  free  from  all  mesne  incumbrances.  It  is  con- 
ceded also  that  the  surrenderor,  until  the  admittance  of  the  surrenderee, 
continues  tenant  to  the  lord  for  all  purposes  of  service.  The  estate, 
therefore,  does  not  by  the  surrender  vest  in  the  lord.  It  is  conceded 
also  that  the  surrenderee  before  admittance  takes  nothing,  but  that  on 
admittance  he  is  in  by  relation  from  the  time  of  the  surrender,  as  be- 
tween him  and  the  surrenderor,  yet  he  has  not  been  tenant  in  the  mean 
time  ;  for  it  is  distinctly  held,  in  Doe  dem.  Jeffries  v.  Hicks, ^  that  if  he 
be  attainted  in  the  mean  time,  the  lord  will  not  take  by  forfeiture. 

If,  then,  no  act  of  the  surrenderee  before  admittance  will  work  a 
forfeiture,  and  if  it  were  held  that  the  surrenderor  after  surrender, 
although  he  be  tenant,  cannot  by  any  act  of  his  work  a  forfeiture,  it 
would  follow  that  a  considerable  time  might  elapse,  during  which  the 
lord's  right  of  escheat  is  suspended,  and  that  not  by  any  act  of  his 
own,  but  by  the  acts  of  others,  which  he  cannot  prevent ;  for  he  can 
neither  refuse  to  accept  a  surrender,  nor  compel  a  surrenderee  to  come 
in  and  be  admitted.  We  do  not  find  any  authority  for  such  a  proposi- 
tion. On  the  contrary,  it  is  laid  down  by  Lord  Chancellor  Maccles- 
field, in  Peachey  v.  Duke  of  Somerset,'^  that  the  lord  must  always  have 
such  a  tenant  upon  his  lands  as  may  be  sufficient  to  answer  all  demands, 
and  capable  of  committing  forfeitures. 

There  are  many  authorities  relating  to  freehold  estates,  and  some 
relating  to  copyholds,  which  show  that  the  tenant  shall  forfeit  only 
that  which  he  has  ;  and  therefore  in  Pawlett  v.  The  Attorney  General 
(which  was  a  ease  of  freehold),  it  was  held  that  the  mortgagor  had  a 
riglit  to  redeem  against  the  crown,  where  the  mortgagee  in  possession 
had  been  attainted  ;  but  it  is  plain  that  in  that  case  Lord  C.  B.  Hale, 
sitting  in  equity,  treated  the  mortgagee's  interest  in  the  land  as  a  mere 
pledge  and  security  for  money.  It  is  no  authority  whatever  for  saying 
that  the  estate  was  not  forfeited  to  the  lord  at  law. 

It  was  argued  that  the  court,  in  cases  of  maiidamvs  to  admit  to 
copyhoUl  estates,  frorpiently  looks  to  equitalilc  interests  ;  but,  without 
at  all  denying  that  this  may  be  so  in  some  instances,  it  seems  clear  that 
this  court  cannot,  in  such  a  case  as  the  present,  enter  into  a  question 
of  trust  or  adjust  the  equitable  rights  of  thf  parties. 

Upon  tiic  whole,  without  miiuitcly  examining  all  the  cases  cited  by 
the  learned  counsel  for  the  surrenderee,  we  are  of  opinion,  that  as  the 
surrenderor  is  conceded  to  be  tenant  for  all  purposes  of  service  until 
the  admittance  of  the  surrenderee,  so  he  is  also  tenant  for  the  purpose 
of  forfeiting.  llule  discharyed.' 

1  2  Wils.  13.  2  1  Stra.  4rA. 

«  Elle.smerri,  Ofllro  of  Cli.inrfllnr,  f.  0.1,  pi.  4R ;  Joiik.  C  Cent.  j.l.  .10;  roaclioy  r. 
Somerset,  1  Stra.  447,  4.54;  P>urK''.''a  v.  Whoatc,  1  Ed.  177,  201,  240  (armlilp)  ;  Atty. 
Gen.  i;.  Leeds,  2  M.  &  K.  343 ;  Ucnzoiii  v.  Lenoir,  1  Dev.  Eq.  225;  King  v.  Khew.  108 


350  •  THE  KING  V.    MILDMAY.  [CHAP.  III. 

N.  C.  700  Accord.  See  also  Reeve  v.  Atty.  Gen.,  2  Atk.  223 ;  Hodge  v.  Atty.  Gen.,  3 
T.  &  C.  34J. 

Molton  V.  Henderson,  62  Ala.  426,  contra. 

lu  Jiukius,  6  Oout.  j>l.  30:  "At  this  day,  where  the  tenant  of  the  land  is  attainted 
of  felony  or  treason,  the  use  and  trust  for  this  land  are  extinguished ;  for  tlie  king,  or 
the  lord  to  wliom  the  escheat  belongs,  comes  in  in  the  past,  and  paramount  the  trust ; 
and  upon  a  title  elder  than  the  use  or  trust,  viz.  the  riglit  of  his  lordsliip  by  escheat  for 
want  of  a  tenant." 

In  Atty.  Gen.  v.  Leeds,  supra,  Sir  John  Leach,  M.  R.,  said,  p.  347  :  "  It  was  settled 
by  the  case  of  Burgess  v.  Wheate  that  a  cestui  que  trust  has  no  title  as  against  the  lord, 
who  claims  by  escheat  upon  the  death  of  the  trustee  witliout  heirs." 

In  Heuzeiu  v.  Lenoir,  supra,  Henderson,  J.,  said,  p.  2.57  :  "If  Cossart  [the  trustee] 
has  lost  his  estate,  the  cestui  que  trusts  have  lost  theirs  also ;  their  interest,  being  a 
mere  sliadow  of  the  legal  estate,  vanishes  when  that  ceases  to  exist,  that  is,  when  a 
different  one  arises,  or,  in  the  language  of  the  law,  where  another  comes  in  the  post  to 
an  estate  in  the  lands.  I  do  not  mean  where  the  estate,  to  which  the  trusts  were 
annexed,  falls  into  other  hands  than  those  appointed  by  the  creator  of  the  trust  to  take 
it ;  as  where  the  devisee  in  trust  dies  before  the  de\  isor,  there  the  lieir  takes  the  estate 
subject  to  the  trust.  The  law  is  the  same  as  to  tenants  by  the  curtesy,  tenant  in 
dower,  and  the  bargainee  under  a  bargain  and  sale,  who  are  said  not  to  come  in  by 
the  trustee,  but  by  the  law,  their  estates  being  the  same  with  that  of  the  trustee,  and 
cast  upon  them  by  law,  although  not  created  by  the  act  of  the  party.  Nothing  but 
the  technical  expressions,  tlie  j>er  and  the  post,  and  not  going  beyond  the  letter  of  the 
maxim  into  the  principle  ui)on  which  it  is  founded,  can  for  a  moment  sustain  the  idea 
that  those  estates  were  detached  from  the  trusts.  But  the  lord  who  comes  in  by 
escheat  above  his  tenant's  estate,  the  abator,  the  intruder,  the  disseisor,  who  thereby 
acquire  a  new  estate,  aPe  not  affected  by  the  trust ;  and  if  as  against  them  the  trustee 
loses  the  legal  estate,  the  trusts  immediately  vanish,  as  the  shadow  disappears  when 
the  substance  is  gone." 

The  notion  that  the  lord  taking  by  escheat  is  bound  by  a  trust  is  countenanced  only 
by  the  dissenting  opinion  of  Lord  Mansfield  in  Burgess  v.  Wheate,  1  Ed.  177,  229,  the 
reasoning  in  which  is  fully  answered  in  Lewin,  Trusts  (3d  ed.),  281,  by  an  alleged 
but  improbable  dictum  of  Lord  Bridgman  in  Geary  v.  Bearcroft,  Cart.  67  (see  1  Har- 
grave's  Juris.  Exer.  383,  391),  and  by  loose  dicta  in  Eales  v.  England,  Prec.  Ch.  200, 
and  White  v.  Baylor,  10  Ir.  Eq.  R.  43,  54. 

By  St.  47  &  48  Vict.  c.  71,  §  6  (following  the  earlier  acts  39  &  40  Geo.  III.  c.  88,  §  12, 
and  13  &  14  Vict.  c.  60,  §§  15,  46),  the  right  of  the  cestui  que  trust  is  saved,  although 
the  legal  title  escheats  by  the  failure  of  heirs  of  the  trustee.  See  Re  Martinez's 
Trusts,  W.  N.  (1870),  70.  —  Ed. 


Uses.  —  The  lord  taking  by  escheat  on  the  death  of  a  feoffee  to  uses  without  heirs 
was  not  bound  by  the  use.  Y.  B.  14  Hen.  VIII.  f.  4,  pi.  5  ;  supra,  p.  283 ;  Bro.  Ab.  Feff. 
al  Uses,  pi.  40 ;  Chuddleigh's  Case,  1  Rep.  122  a,  139  b. 

In  Chuddleigh's  Case,  supra,  Lord  Coke  said :  "  Without  question  a  feoffee  upon 
good  consideration  without  notice,  disseisor,  or  lord  by  escheat,  lord  of  a  villain,  cor- 
poration, an  alien  born,  a  person  attainted  shall  not  stand  seised  to  a  contingent  use, 
DO  more  than  to  a  use  in  esse  before  the  statute  of  Hen.  VIII. ;  "  and  Popham,  C.  J., 
said,  in  the  same  case,  139  b :  "The  reason  why  the  lord  by  escheat,  or  the  lord  of  a 
villain,  should  not  stand  seised  to  an  use,  is,  because  the  title  of  the  lord  is  by  reason 
of  his  elder  title,  and  that  grows  either  by  reason  of  the  seigniory  of  the  land,  or 
of  the  villain,  which  title  is  higher  and  elder  than  the  use  or  confidence  is;  and  there- 
fore should  not  be  subject  to  it."  —  Ed. 


SECT.  IL  ]  ANONYxMOUS.  351 


SECTION   II.  (continued). 

The  Descent  of  Trust  Property/, 
(b)  Death  of  Cestui  que  Trust. 

ANONYMOUS. 

In  the  ,  Michaelmas  Term,  1465. 

[Reported  in  Year  Book,  5  Edward  IV.,  folio  7,  placititm  16.] 

If  J.  enfeoffed  A.  to  his  use  and  A.  enfeoffed  R.,  although  he  sold 
the  land  to  him  ;  if  A.  gave  notice  to  R.  of  the  intent  of  the  first  use, 
he  is  bound  by  writ  of  subpcpna  to  perform  the  will,  &c.  But  if  tenant 
in  borough-Elnglish  enfeoffed  one  to  the  use  of  him  and  his  heirs,  the 
youngest  son  shall  have  the  subpoena  and  not  the  heir  general ; '  likewise 
if  a  man  makes  a  feoffment  in  trust  of  land  descended  to  him  on  the 
maternal  side  and  dies  without  issue,  the  heir  ex  parte  materna  shall 
have  the  subpccna.^       • 

1  Y.  B.  21  Ed.  IV.  fol.  24,  pi.  10 ;  Y.  B.  27  Hen.  VIII.  fol.  9,  pi.  22 ;  Jones  v.  Heas- 
bie,  2  Roll.  Abr.  780,  pi.  7  ;  Fawcet  v.  Lowther,  2  Ves.  Sen.  300,  304  {setnble)  ;  Banks 
V.  Sutton,  2  P.  Wins    713  (semble)  Accord.  —  En. 

2  Burgess  v.  Wheate,  1  Eden,  186,  216,  256;  Langley  v.  Sneyd,  1  S.  &  S.  45,  55; 
Nanson  v.  Barnes,  L.  li.  7  Eq.  250  Accord. 

"  If  by  a  custom  of  a  manor  land  ought  to  descend  to  the  eldest  daughter  only,  ex- 
cluding the  otlier  daughters,  there  being  no  son,  and  a  tru.st  in  equity  descends  to  the 
heir,  tliis  shall  go  to  the  eldest  daugliter  only,  to  be  relieved  upon  this  in  equity  accord- 
ing to  the  custom  for  the  land.     P.  10  Car."     2  Roll.  Ab  780  [D]  7. 

A  husband  who  is  entitled  by  statute  to  the  "  personal  estate  "  of  liis  wife  dying  in- 
testate, succeeds  to  personalty  held  in  trust  for  lier.  Bartlott  v.  Bartlett,  137  Mass. 
156. 

In  Banks  v.  Sntton,  2  P.  Wms.  700,  Sir  J.  .Jekyll,  :\r.  R.,.said,  p.  71.'?  :  "That  trusts 
and  legal  estates  are  to  be  governed  l)y  the  same  rules,  is  a  niaxim  that  olitains  univer- 
sally ;  it  is  so  in  the  rules  of  descent,  as  in  gavelkind  and  borough-English  there  is  a 
posaestio  fratrix  of  a  trust  as  well  as  a  legal  estate  (n)  ;  tlie  like  rules  of  liniitatioti  (')), 
and  as  also  of  Ijarring  entails  of  trusts  (c),  as  of  legal  estates."  See  to  the  same  effect 
Frecdman's  Co.  t;.  Earle,  110  U.  S.  710,  713.  —  Ed. 

(a)  Chudleigh's  Case,  1  Rop.  121  h  \  Brown's  Case.  4  Bop.  22  a  ;  Wimbish  v.  Tail- 
bois,  Plowd.  58;  Cimningham  v.  Moody,  2  Ves.  174  ;  Buchanan  v.  Harrison,  1  Johns. 
&  H.  662  Accord.— VAt. 

(h)   Brydges  v.   Brvdgfs,  .■?  Ves.  Jr.  120,  127;    AV  White,  7  Ch.  I).  201  Accord. 

—  En. 

(c)  Ooodrick  v.  Brown,  Freem.  C.  C.  180;  Washbourn  v.  Downes.  1  Ch.  Cft.  213; 
Brydges  v.  Brydges,  3  Ves.  Jr.  120,  127;  Wykhain  v.  Wykliam,  18  Ves.  418  Aceord. 

—  Ed. 


352  ANONYMOUS.  [CHAP.  III. 


REX  V.   WILLIAMS. 
In  Chancery,  February  19,  1735. 

[Reported  in  Bunbury,  342.] 

Two  joint  purchasers  of  a  lease  for  years  assign  this  lease  to  a  third 
person  (a  friend  of  one  of  the  jointenants,  and  with  the  consent  of  tlie 
other)  but  it  was  without  consideration,  and  no  declaration  of  trust  was 
given,  and  so  the  defendant  confessed  in  his  answer  ;  the  jointenant  who 
consented  to  assign  died  in  debt. 

Upon  the  bill  and  answer  the  question  was,  whether  this  trust  shall 
result  for  the  benefit  of  the  jointenant  surviving  only  as  it  would  at  law  ; 
or  whether  the  creditors  of  the  jointenant  that  died  should  come  in  for 
an  equal  moiety  in  equity. 

Nota^  The  trustee  was  made  executor  to  him  that  died,  and  was  also 
a  creditor  of  his. 

Nota,  The  two  jointenants  continued  to  receive  the  profits  jointly  after 
the  assignment. 

Upon  this  state  of  the  case  the  whole  Court  were  of  opinion  that 
though  survivorship  is  looked  upon  as  odious  in  equity,  yet  that  in  this 
case  the  trust  shall  survive  for  the  benefit  of  the  surviving  cestui  que 
ti'ust  only.^ 


ANONYMOUS. 

In  the ,  Michaelmas  Term,  1465. 

[Reported  in  Year  Book,  5  Edward  IV.,  7,  placitum  18.2] 

If  there  are  lord  and  tenant,  and  the  tenant  enfeoflfs  one  without 
declaring  his  will  and  commits  a  felony,  gucere^  who  shall  have  the 
subpoena,  for  the  lord  shall  not  have  it.' 

1  Aston  (.'.  Smalhnan,  2  Vern.  5.56;  York  v.  Stone,  1  Salk.  158  Accoid.  —  'El>. 

2  Ellesmere,  Office  of  Chancellor,  f.  85,  pi.  22,  8.  c.  —  Ed. 

8  2  And.  200;  .Tenk.  Cent.  Cas.  190  Arcord.  So  the  lord  was  not  entitled  to  the 
wardship  of  the  heir  of  cestui  que  use  until  it  was  given  him  by  a  statute.  Y.  B.  27 
H.  Vni.  8-22.  —  Ed. 


SECT.  II.]  THE  KING  V.   DACCOMBE.  353 


THE  KING  V.   The  Executors  of  SIR  JOHN   DACCOMBE. 

In  the  Exchequer,  Michaelmas  Term,  1618. 

[Reported  in  Croke's  James,  512.1] 

King  James  made  a  lease  to  Sir  John  Daccombe  and  others,  of  the 
provision  of  wines  for  his  Majesty's  house  for  ten  years,  in  trust  for 
the  Earl  of  Somerset.  They  made  a  lease  for  all  the  term  except  one 
month,  rendering  nine  hundred  pounds  a  year.  The  Earl  of  Somerset 
being  afterwards  attainted  of  felony,  the  question  was,  whether  the 
trust  which  was  for  the  said  earl  was  forfeited  to  the  king  by  this 
'attainder.  And  it  was  referred  to  all  the  justices  of  England,  by  com- 
mand from  the  king,  to  be  considered  of,  and  to  certify  their  opinions. 
Tanfield,  Chief  Baron,  now  delivered  all  their  opinions  to  be,  that 
this  trust  was  forfeited  to  the  king,  and  that  the  executor  shall  be 
compelled  in  equity  to  assign  the  residue  of  the  term  and  the  rent  to 
the  king.  And  he  cited  a  case  to  be  adjudged,  24  Eliz.,  where  one 
Birket  had  taken  bond  in  another's  name,  and  was  afterwards  out- 
lawed, that  the  king  should  have  this  bond ;  and  that  in  24  Eliz.  one 
Armstrong,  being  lessee  for  years,  assigned  the  lease  to  another  in 
trust  for  himself,  and  being  attainted  of  felony,  this  trust  was  for- 
feited to  the  king.  But  he  said  they  all  held,  and  so  it  was  resolved 
in  another  case,^  that  a  trust  in  a  a  freehold  was  not  forfeited  upon 
attainder  of  treason.^  Note,  This  case  I  had  from  the  report  of 
Humphrey  Davenport,  who  was  of  counsel  in  this  case.* 

1  Aleyn,  10,  Hob.  214,  1  Sid.  403,  Jenk.  6  Cent.  pi.  30,  Jenk.  7  Cent.  pi.  39  s.  c  — 
Ed. 

2  Abington's  Case  (11  Jac.)  Hard.  490  (cited).  "  It  was  said  [with  reference  to  the 
Stat.  3."J  II.  VIII.]  that  jio  u.se  can  be  forfeited  at  this  day  [ir)93-l.')98]  except  the  use 
of  a  cJiattel  U-a.se  ;  for  all  usci  of  freehold  are  executed  by  Stat.  27  II.  VIII.  in  posses- 
sion, so  there  is  no  use  to  be  forfeited."     1  And.  294.     See  4  Greeubag,  82.  —  Ed. 

8  Hut  see  Lewin  Tru.sts  (9th  cd.),  932-34.  — Ei>. 

*  Bro.  Ab.,  Feoff,  al  U.se,  4.') ;  Wike's  Case,  Lane,  54  ;  Smith  r.  Wheeler,  1  Mod.  16 
(semhle)  ;  Kaleij^b's  Ca.so,  Hard.  4^)0  (cited);  Al)ington'8  Case,  Hard.  490  (cited); 
Morgan's  Cxse,  2  Roll.  Ab.  807  [B]  9  ;  King  i;.  Laniot,  2  Roll.  Al).  807  [B]  11  ;  Eustace 
V.  Kildaro,  2  Ch.  Ca.  188,  1  Vern.  405  ;  Angier's  (Jaso,  Hard.  490  (cited)  ;  Bishop  v. 
Curtis,  18  Q.  B.  878  ;  Up  Thompson's  Trusts,  22  Beav.  500;  /,V  Bateinan's  Trust.  15 
E(j.  355  Accord.  But  the  crown,  althougli  entitled  to  the  trust,  would  always  upon 
the  apj)iication  of  a  creditor  of  the  cpstni  que  trust  give  the  creditor  the  benefit  of  the 
trust.     Balch  v.  Waatall,  1  P.  Wins.  445.  —  Ed. 


23 


)54  king's  attorney  v.  sands.  [chap,  iil 


KING'S  ATTORNEY  v.   SIR  GEORGE   SANDS. 

In  the  Exchequer,  K^ster  Term,  1669. 

[Reported  in  Freeman,  Chancer^/  Cases,  129.*] 

Sir  Ralph  Freeman  purchased  a  lease  for  years  of  several  manors ; 
afterwards  he  purchased  the  inheritance  thereof,  in  the  name  of  Sir 
George  Sands,  being  his  son-in-law,  in  trust  for  Sir  Ralph  and  his 
heirs ;  afterwards  Sir  Ralph  made  his  will,  and  made  Mr.  Freeman  his 
executor,  and  appointed  that  his  said  executor  and  Sir  George  Sands 
^ould  convey  part  to  Freeman  Sands,  and  part  to  George  Sands,  the 
two  sous  of  Sir  George  Sands,  and  their  heirs ;  the  residue  to  all  the 
sons  of  Sir  George  Sands,  by  his  then  lady  (Sir  Ralph's  daughter),* 
aud  their  heirs,  who  should  be  living  at  the  time  of  his  death,  and 
then  died.  Sir  George  Sands,  at  the  time  of  the  death  of  Sir  Ralph, 
had  only  Freeman  Sands  (who  soon  after  died  without  issue)  and  the 
said  George  Sands ;  but  afterwards  Sir  George  had  issue  another  son, 
called  Freeman  Sands.  Mr.  Freeman,  the  executor,  refused  the  execu- 
torship, whereupon  administration  was  granted  to  Sir  George  Sands  ; 
afterwards,  no  conveyance  being  made  either  of  the  lease  or  of  the 
reversion  by  Sir  George  Sands,  who  had  both  in  trust,  according  to 
the  will.  Freeman  Sands  killed  George,  his  brother,  and  was  afterwards 
attainted  of  murder. 

The  question  was,  whether  any  of  those  trusts,  either  of  the  lease  or 
of  the  reversion,  that  were  so  in  Sir  George,  in  trust  as  aforesaid,  were 
forfeited  to  the  king,  of  whom  the  lands  were  holden,  by  this  felony 
and  attainder;  who,  by  the  king's  attorney,  sued  Sir  George  on  the 
equity  side  of  the  Exchequer,  to  answer  the  profits  to  the  king,  sup- 
posing those  trusts  to  be  forfeited  by  the  felony  and  attainder. 

The  case  was  several  times  argued  at  the  bar,  and  this  term  Chief 
Baron  Hale  and  Baron  Turner  (Rainsford  being  removed  into  the 
King's  Bench,  and  Atkins  disabled  by  age)  both  agreed  that  this  trust 
was  not  forfeited. 

In  their  arguments  it  was  agreed,  cestui  que  trust  in  fee,  or  fee  tail, 
forfeit  the  same  by  attainder  of  treason,^  and  the  estate  to  be  executed 
to  the  king  in  a  court  of  equity,  by  27  H.  VIII.  10,  and  33  H.  VIII. 

2.  An  alien  cesf^d  que  trust  of  any  estate,  the  estate  belongs  to  the 
king ;  which,  the  Chief  Baron  said,  was  the  opinion  of  the  judges  in 

1  Nels.  1.30,  3  Ch.  ■Rep.  .3.3,  Hard.  40.5,  488  s.  c.  —  En. 

2  In  the  King  v.  Lord  Nottingham,  Lane,  4.5,  it  is  observed,  "It  would  be  incon- 
venient that  the  same  land  should  be  subject  to  several  forfeitures,  at  the  same  time, 
bj  several  men ; "  and  it  has  been  declared,  subsequently  to  the  present  case,  and  in 
opposition  to  the  dictum  in  the  text,  that  the  trust  of  a  freehold  is  uot  forfeited  to  th« 
crown  by  the  cestui  que  trust  being  attainted  of  treason  :  The  King  v.  The  Executors  of 
Sir  .John  Daccombe.  Cro.  Jac.  513  ;  though,  in  the  same  case,  it  was  adjudged  that 
cestui  que  trust  of  a  chattel  interest,  upon  attainder  of  felony  even,  forfeits  the  same  to 
the  crown. 


SECT.  II.]  king's   attorney  V.   SANDS.  355 

Holland's  Case,'  23  Car.  I.  ;  and  that  an  alien  cannot  purchase  but  for 
the  king's  use,  and  that  he  was  of  counsel  in  the  case.  See  the  case 
reported  in  Style,  20,  40. 

3.  As  to  the  king's  debt,  by  the  common  law,  and  by  the  practice 
of  this  court,  which  is  of  the  common  law,  cestui  que  trust  being  in- 
debted to  the  king,  the  king  shall  have  execution  of  his  debt  on  this 
trust;  for  before  the  statute  made,  4  H.  VII.  17,  and  19  H.  VII.  5,  in 
the  time  of  H.  VI.,  there  be  precedents  in  this  court,  that  the  writ  of 
extendi  fac.  for  the  levying  of  the  king's  del)t,  was  of  tlie  debtor's  land, 
or  of  any  other  land  of  which  any  other  person  was  seised  to  his  use  ; 
and  this  was  the  reason  of  Sir  Edward  Cooke's  Case,^  where  the  interest 
of  the  king's  debt  did  attach  upon  the  power  of  the  king's  debtor 
to  revoke  a  settlement  made  of  his  estate  ;  and  Pasch.  4  Jac.  Ford's 
security,  taken  in  trust  for  a  recusant,  was  liable  to  the  king's  debt  of 
£20  per  North  ;  so  that  where  the  king's  debtor  hath  the  profitable  part 
of  the  estate,  the  king  shall  not  lose  his  debt  by  any  fiction. 

4.  It  was  agreed  that  the  trust  of  the  reversion  would  not  be  for- 
feited b}'  felony  ;  which  the  court  held  clear,  and  cited  for  authorities 
Marquis  of  Winchester's  Case  ; «  12  Co.  1,  2  ;  5  Ed.  IV.  7  ;  2  Cro.  513  ; 
Stat.  33  H.  VIII.  And  if  the  inheritance  be  forfeited  for  felony,  it 
must  be  to  the  lord  by. escheat,  which  cannot  be,  because  he  hath  cestui 
que  estate  for  his  tenant ;  and  that  no  trust  of  an  heir  is  forfeited  for 
felony,  appears  by  27  H.  VIII.  10,  and  there  is  no  wrong  to  the  lord  as 
long  as  he  hath  a  tenant,  and  therefore  till  the  statute  of  It)  H.  VII. 
15,  the  lord  could  not  seize  the  lands  of  which  his  villein  was  cestui  que 
trust;  and  if  it  be  demanded  what  shall  become  of  his  trust,  as  if  ten- 
ant in  fee  of  a  rent-charge  dieth  without  heir,  it  is  answered,  the  land 
shall  l)e  discharged  of  this  trust,  as  if  tenant  in  fee  of  a  rent-charge  die 
without  liL'ir,  or  be  attainted,  the  land  is  discharged. 

Trust  of  a  lease  for  years  in  gross  may  be  forfeited  by  felony,  or 
outlawry  in  a  personal  action.  Earl  of  Somerset's  Case ;  Dacomb's 
Case  ;  Halington's  Case. 

Lease  for  years,  if  it  be  of  never  so  long  continuance,  if  it  be  as- 
signed in  trust  for  J.  S.  and  his  heirs,  yet  it  shall  go  to  his  executors  ; 
yet  trusts  are  ruled  according  to  the  style  and  course  of  courts  of 
equity. 

A  real  chattel  in  law  survives  to  the  husband,  but  not  the  trust,*  of 
a  real  chattel.     Co.  Lit.  Cap.  Remit.  H.'il. 

Cestui  que  trust  of  an  inlieritaufo  I)iiids  himself  and  Iiis  lioirs  in  a 
T)ond,  this  trust  is  not  assets  to  llic  Inir;  though  it  hath  since  been 
questioned  in  the  Lord  Chancellor  Hyde's  time:  but  clearly  the  trust 
•of  ft  lease  for  years  is  assets  to  charge  j\n  executor  in  etiiiity. 

So  a  trust  assigned  over  to  wait  upon  the  inheritance,  thougii  of  a 
term,  shall  go  to  the  heirs,  nnd  heirs  of  the  body,  because  a  shadow 

1  Aleyn,  14.  '  2  Rollo'g  Rep.  294.  «  3  Co. 

*  See  Freem.  C.  C.  c.  .32,  p.  20,  note  3. 


356  BUKGESS   V.   WHEATE.  [CHAP.  III. 

kept  on  foot  for  a  special  purpose  ;  and  this  hath  a  great  resemblance 
to  the  case  of  charters,  which  go  with  the  inheritance  to  the  heir,  but 
if  granted  over,  the  parchment  and  wax  shall  go  to  the  grantee  and 
his  executors.     4  H.  VII.  10. 

And  in  the  present  case  no  trust  of  the  chattel  is  forfeited  to  the 
king,  because  the  lease  for  years  was  not  in  Freeman,  who  was  at- 
tainted of  felony,  nor  the  trust  in  him  as  a  chattel,  for  that  he  must 
have  been  executor  and  administrator  of  George,  the  son. 

And  here  it  was  Sir  Ralph's  intent  that  the  lease  and  inheritance 
should  be  confounded,  and  not  kept  separate  ;  and,  again,  Freeman 
could  have  this  trust  but  as  heir  to  George,  and  as  long  as  he  hath  the 
inheritance  in  him,  and  no  longer,  but  it  shall  go  to  the  heir  as  char- 
ters,^ nomine  poenoi,  patronage  by  foundership,  &c.  ;  and  the  mischief 
otherwise  would  be  great,  to  have  such  waiting  terms  forfeited  by  out 
lawry.     And  so  judgment  was  given  against  the  king's  attorney. 


BURGESS  V.   WHEATE. 

In  Chancery,  before  Lord  Henley,  K.,  Lord  Mansfield,  C.  J., 
AND  Sir  Thomas  Clarke,  M.  R.,  January  24,  1759. 

[Reported  in  1   William  Blackstone,  123] 

Lord  Keeper.^  I.  First,  I  shall  take  notice  of  the  claim  of  the 
crown,  because  several  of  the  arguments  I  shall  make  use  of  on  that, 
will  tend  to  support  the  opinion  I  shall  give  on  the  other  claims.  The 
question  on  the  information  is,  whether  the  cestui  que  trust  dying  with- 
out heirs,  the  trust  is  escheated  to  the  crown,  so  that  the  lands  may  be 
recovered  in  a  court  of  equity  ])y  the  crown,  or  whether  the  trustee  shall 
hold  them  for  his  own  benefit.  (States  the  case.)  On  11  January, 
1718,  Mrs.  Harding  conveys  to  trustees  (of  whom  Sir  F.  Page  was  the 
survivor)  the  lands  in  question,  in  trust  for  Mrs.  Harding,  her  heirs 
and  assigns,  to  the  intent  that  she  should  appoint  such  estates  there- 
out, and  to  such  [persons]  as  she  should  think  proper.  Mrs.  Harding 
dies  without  making  any  appointment,  and  without  heirs  ex  parte  pa- 
terna.  The  information  charges  tliat  the  trustee  took  no  benefit,  but 
only  for  Elizabeth  Harding,  and  to  be  subject  to  her  appointment ; 
and  that  she  being  dead  sans  heirs  on  the  father's  side,  and  having 
made  no  disposition  of  the  estate,  that  Sir  F.  Page  could  take  no  estate 
for  his  own  benefit  by  the  deed  or  the  fine,  but  takes  it  for  the  benefit  of 
bis  Majesty,  who  stands  in  the  place  of  the  heir,  and  that  the  premises 

1  Strorle  V.  Blackhnrne.  3  Vcs.  22r,. 

2  The  opinion  of  Lord  Keeper  has  been  slightly  ahridgerl ;  the  conctirring  opinion 
of  Sir  Thomas  Clarke,  M.  R.,  and  the  dissenting  opinion  of  Lord  Mansfield,  C.  J.,  are 
omitted,  on  account  of  their  great  length.  —  Ed. 


SECT.  II.]  BURGESS   V.   WHEATE.  357 

are  escheated  to  his  Majesty.  The  question,  therefore,  is  entirely  a 
question  of  tenure,  and  not  of  forfeiture. 

I  shall  consider,  first,  the  right  of  lords  to  escheat  at  law.  Secondly, 
Whether  they  have  received  a  different  modification  in  a  court  of 
equity.  Thirdly,  The  arguments  used  in  support  of  the  information  ; 
and  from  the  whole  draw  this  conclusion,  that  the  crown  has  in  this 
case  no  equity. 

1.  I  shall  consider  the  law  of  escheat,  as  settled  by  the  municipal 
writers  in  the  law,  and  reporters,  and  shall  not  regard  what  the  law 
was  in  other  countries,  as  they  seem  founded  and  calculated  for  empu-e 
and  vassalage,  to  which  I  hope  in  this  country  we  shall  never  be  sub- 
ject. I  will  just  give  a  specimen  of  the  feudal  law.  Craig,  504. 
Causce  Amissionis  Feudi:  These  causes  are,  incestuous  marriages, 
parricide,  fratricide,  friendship  contracted  with  the  lord's  enemies,  re- 
vealing the  lord's  secrets,  if  they  atfect  his  life  or  reputation,  outlawry 
not  reversed,  and  all  other  causes  in  the  discretion  of  the  prajtor.  I 
cite  this  to  relieve  me  from  the  doctrine  of  the  feudists.  The  legal 
right  of  escheat  with  us  arises  from  the  law  of  infeoffment  to  the  ten- 
ant and  his  heirs,  and  then  it  returned  to  the  lord,  if  the  tenant  died 
without  heirs.  The  extension  of  the  feoffment  from  the  person  of  the 
tenant  to  the  heirs  special  of  the  body,  and  then  to  his  heirs  and  as- 
signs, is  accurately  traced  in  a  treatise  of  tenures  by  a  learned  hand  : ' 
this  reduces  the  condition  of  the  reversion,  to  this  single  event,  viz. 
Ob  defectum  tenentis  de  jure.  F.  N.  B.  337  :  A  writ  of  escheat  lies 
where  tenant  in  fee  of  any  lands  or  tenements  holds  them  of  another, 
and  tenant  dies  seised  ^  without  heirs  general  or  special,  the  lord  shall 
have  the  land :  because  he  shall  have  it  in  lieu  of  his  services.  The 
books  are  uniform,  that  in  the  case  only  of  tenant's  dyiug  without  heir, 
the  esclieat  took  place.  As  long  as  tenant  or  his  heir,  or,  l)y  his  im- 
plied assent,  another  continued  in  possession  by  title,  that  prevented 
escheat.  The  law  had  no  regard  to  the  tenant's  right  to  the  land,  Imt 
in  right  of  his  seisin.  All  these  instances  show  that  where  there  was  a 
tenant  actually  seised,  tiiough  he  iiad  no  right  to  the  tenements,  and 
though  the  person  who  had  tiie  right  died  williout  heirs,  yet  tiie  escheat 
was  preveuted.  For  if  tiie  lord  lias  a  tenant  to  perfonu  tiie  services, 
the  land  cannot  revert  in  demesne.  Koil.  Abr.  HKi;  Wliittingliam's 
Case;«  7  Hen.  I\'.,  Heir  of  Disseisor;  1  Int.  208  ?>,  Feoffee  of  Dissei- 
sor.    Upon  these  cases  I  would  observe,  that  the  lord's  consent  had 

1  Sir  .M.  Wright. 

3  "Tlio  wonlH  of  F.  N.  B.  nro  so  :  l.iif,  vid.  V.  N.  H,  .3.38  (C),  in  tlioso  words  :  '  Ami 
if  the  tf;ii;int  Ito  (liPHoisfii,  a?nl  aftcrw.inlH  dit'tli  without  hoir,  &.C.,  it  seeinotli  the  lord 
shall  have  a  writ  of  osdieat,  bccaiiHe  his  tenant  died  in  the  hom.ape.'  Contra,  32 
11.  VI.  27  a,  j»l.  K),  and  so  rifed  in  Com.  Dij;.  Exrhrat  (U  2) ;  and  the  distinction  there 
is  that  if  the  tenant  lie  rJisHeiHcd,  the  lord  may  enter,  Imt  not  \x:\.\v  ii  writ  of  r'sciieat ;  hnt 
if  the  diHseisor  had  died  seised,  the  lord  could  neither  enter  nor  liave  ;i  writ  of  esrlieat, 
ib.  ;  and  it  seems  l»y  tlie  reasoning;  of  the  (•f)nrt,  '.Vi  II.  VI.  27  a,  th.it  the  lord  can  in  no 
case  have  a  writ  of  escheat,  except  wlicro  his  entry  was  lawful.     Ihid."  MS.  iScrj.  ililL 

3  8  Hep.  42  b. 


358  BURGESS   V.   WIIEATE.  [CHAP.  III. 

uothiug  to  do  with  establishing  the  right  of  the  tenant's  being  duly 
seised,  because  in  every  one  of  these  cases  they  all  come  in  without 
the  lord's  consent ;  unless  it  may  be  said  that  the  lord  is  a  virtual  as- 
senter,  as  well  to  the  disseisins  as  the  legal  conveyances.  And  then, 
if  that  be  so,  it  would  opei'ate  to  the  establishing  the  right  of  the  trus- 
tee here,  who  would  say  he  is  entitled  under  a  conveyance  in  law,  by 
the  very  consent  of  the  lord  ;  which  is  a  stronger  case  than  a  disseisin. 
From  these  cases  and  authorities  it  must  be  allowed  to  be  settled,  that 
the  law  did  not  regard  the  tenant's  want  of  title,  as  giving  the  lord 
right  to  escheat. 

2.  The  next  consideration  is,  whether  a  court  of  equity  can  consider 
it  in  a  different  light.  Now,  when  the  tenant  did  not  die  seised,  and  a 
proper  legal  tenant  by  title  continued,  and  consequently  the  lord's 
seigniory  and  services  continued,  caji  this  Court  say  to  the  lord,  Your 
seignior}'  is  extinguished,  aud  to  the  tenant,  Your  tenancy  is  so  too, 
though  both  are  legal  rights  now  subsisting  at  law  ?  In  consideration 
of  uses  with  regard  to  escheats,  equity  has  proceeded  on  the  same  prin- 
ciple as  the  law,  where  there  was  a  tenant  of  the  land  that  performed 
the  services.  And  I  don't  find  this  court  had  any  regard  to  the  merum 
jus  of  the  tenant.  Now,  the  reason  why  there  was  no  escheat  on  the  ' 
death  of  cestui  que  use  in  equity  seems  to  be  this  (and  it  is  a  reason 
equally  applicable  to  uses  and  trusts),  that  the  court  had  nothing  to 
issue  a  subpa'ua  upon,  no  equity,  nothing  to  decree  upon;  and  every 
person  must  bring  an  equity  with  him  for  the  court  to  found  its  juris- 
diction upon.  It  seems  to  me  he  could  have  no  equity  in  the  case  of  a 
use,  or  as  owner  of  a  trust,  for  this  plain  reason :  a  use  before  the 
statute  could  not  be  extended  farther  than  the  interest  in  the  estate 
which  the  creator  of  the  use  could  have  enjoyed  ;  as  if  the  creator  of 
the  use  had  a  fee- simple  in  the  land,  he  could  take  back  no  more  in- 
terest in  the  use,  either  declared  or  resulting,  than  he  had  in  the  land  ; 
if  he  makes  a  feoffment,  and  declares  no  uses,  it  results  to  him  in  fee, 
which  is  to  him,  his  heirs  and  assigns.  The  consequence  is,  that  the 
moment  he  dies  without  heirs  or  assigns,  there  was  no  use  remaining. 
How,  then,  can  you  come  here  for  a  subpaMia  (wliether  he  took  back  the 
same  or  a  different  use)  to  execute  a  use  or  trust  which  was  absolutely 
extinct?  That  seems  to  me  the  plain  and  substantial  reason  why,  in 
this  case  (whether  you  call  it  a  use  or  a  trust),  there  was  no  basis  on 
which  to  found  a  subpa-na.  Lord  Chief  Justice's  system  is  very  great 
and  noble,  and  very  equitably  intentioned  ;  such  a  system  as  I  should 
readily  lay  hold  of  upon  every  occasion,  if  I  thought  I  could  do  it  con- 
sistently with  the  rules  of  law„ 

What  scintilla  of  equity  is  given  to  the  lord  ?  Lord  Chief  Justice 
supposes  that  by  feoffment  to  two  trustees  for  Mrs.  Harding,  her  heirs 
and  assigns,  and  for  no  other  use,  the  lord  is  included  in  "  her  heirs  and 
assigns."  That  expression  cannot  do  so.  I  think  the  conveyance  would 
have  been  the  same  if  "  assigns  "  had  been  left  out.  Then  it  is  said,  the 
express  declaration  is  to  her  heirs  and  assigns,  and  that  there  is  an  implied 


SECT.  II.]  BUKGESS   V.   WHEATE.  359 

trust  on  this  ;  for  as  the  trustees  are  to  take  to  no  other  use;  and  the  ex- 
press trust  is  served,  therefore  a  trust  in  fee  results  to  the  lord,  upon  the 
extinguishment  of  heirs  ex  parte  paterna^  To  that  conclusion  I  have 
two  objections  :  1.  I  think  such  a  trust  would,  if  declared,  be  entirely 
void  (and  whether  declared  by  way  of  trust  or  use,  it  is  the  same 
thing) ;  for  when  you  have  limited  an  estate  to  a  man  in  fee,  or  declared 
the  trust  to  him  in  fee,  you  have  no  more  to  dispose  of  in  either  case, 
and  cannot  limit  one  fee  on  another.  It  is  said  in  answer  to  this,  that 
she  could  not  have  limited  it  to  Sir  F.  Page  and  his  heirs  in  default  of  her 
own  heirs,  but  that  a  person  may  limit  anything  according  to  the  course 
of  law,  and  there's  a  reverter  to  a  pei-son  in  fee  in  the  course  of  law, 
therefore  you  may  limit  it  so.  But  it  reverts  by  operation  of  law  on 
extinguishment  of  an  estate  that  was  a  fee-simple  incapable  of  any  fur- 
ther limitation.  The  donor  could  not  have  limited  it  so.  2.  With  re- 
gard to  the  resulting  trust  there  is  this  objection,  which  seems  to  me 
unanswerable.  "What  is  the  estate  conveyed  to  the  trustees?  It  is 
Mrs.  Harding's  estate.  Her  husband  and  she  are  parties  to  the  deed 
and  fine.  They  pass  all  the  estate  that  goes  to  the  trustees.  Can  any- 
thino"  result  by  way  of  trust  or  use  to  a  person  not  privy  to  the  estate 
that  passes  by  the  deed  ?  Where  you  have  passed  the  estate  without 
consideration,  there  in  modern  language  a  use  results,  or  a  trust  re- 
sults ;  because  it  is  inequitable  that  a  man  should  have  an  interest  in 
the  estate,  when  he  has  paid  no  consideration  for  it.  But  where  a  per- 
son is  not  party  to  a  deed  nor  privy  to  the  estate,  I  don't  see  bow  any- 
thino-  can  result  for  his  benefit.  That  this  was  the  notion  in  respect  to 
a  use  appears  from  authorities.  The  law  was,  that  the  lord  could  not 
have  the  escheat  of  a  use.  So  is  5  Ed.  IV.,  for  I  take  that  to  be  the 
report  of  a  case ;  then  it  has  all  the  authority  the  Year-Books  carry 
with  them.  And  this  has  been  adopted  by  all  the  writers  since. 
Bacon,  7!>,  docs  not  question  the  authority  of  this  case.  He  gives  a 
reason  of  his  own,  which  he  substitutes  as  a  better  than  that  in  the 
l)Ooks,  that  there  is  a  tenant  in  by  title,  which  is  a  strong  reason  in 
law  ;  but  it  does  not  mention  that  as  a  reason  with  regard  to  the 
Hubpa-na.  It  i*s  not  a  conclusive  reason,  that  the  lord  shall  not  have 
Kid)pa'na,  because  there  is  a  i)erson  in  possession.  He  should  have  it 
for  that  reason,  if  that  person  is  lialjle  to  him  in  equity.  Therefore 
he  gives  a  better  reason,  because,  says  he,  it  never  was  his  intent  to 
advance  the  lord,  but  his  own  blood.  Therefore  that  is  tiie  reason  ;  it 
would  not  be  within  the  intention  of  that  trust,  tliat  any  besides  llie 
blood  of  the  covenantor  should  take.  Nobody  can  imagine  the  tenMut 
intended  to  provide  a  trust  to  answer  the  lord's  escheat.  Mrs.  H:irding 
never  thought  of  escheat,  I  supjiose  ;  but  had  it  been  suggested  to 
her,  "  If  you  die  without  heirs  that  can  possibly  take  your  estate, 
wouhl  you  rather  have  your  frinnd  you  have  chosen  to  make  your 
trustee  take  it,  or  that  it  should  go  to  the  king  ?"  She  must  have 
been  a  subject  of  more  zeal  than  I  can  suggest,  if  she  had  said  she 
would  give  it  to  the  king. 


360  BURGESS  V.   WIIEATE.  [CIIAP.  III. 

As  I  am  now  stating  the  law  and  equity  of  escheats  with  regard  to  uses 
and  trusts,  I  will  take  here  notice  of  an  objection  that  seems  equally  to 
affect  the  opinions  of  lawyers,  with  regard  to  the  doctrine  of  uses  and 
trusts  ;  and  that  is  the  dilemma  which  was  urged  at  the  bar,  as  the 
basis  of  an  equity  in  the  present  case,  though  I  don't  think  it  a  neces- 
sary dilemma,  viz.  that  the  lord  must  have  the  estate  by  escheat, 
either  on  the  death  of  ceshd  que  trust  without  heirs,  or  of  the  trustee 
without  heirs  discharged  of  the  trust  ;  but  if  he  can't  have  it  while 
the  trustee  lives,  while  there  is  a  tenant,  it  would  be  monstrous  that 
the  cestui  qxie  trust  should  be  prejudiced  by  putting  the  estate  in  the 
trustee's  hands  for  the  benefit  of  the  family.  One  part  of  this  is  a 
dangerous  conclusion,  the  other  is  not.  My  answer  is,  that  if  the  law 
be  so  that  the  lord  shall  in  that  case  take  it  discharged  of  the  trust,  I 
must  suppose  it  no  injury  or  absurdity  at  all.  Volenti  non  fit  i)ijuri<i. 
The  creator  of  the  trust  determines  to  take  the  convenience  of  the  trust 
with  its  inconvenience.  It  is  most  certain,  every  man  who  creates  a 
trust  puts  his  estate  in  the  power  of  his  trustee.  If  the  trustee  sells 
it  for  a  valuable  consideration  without  notice,  no  court  can  relieve  the 
owner  from  this  misfortune  :  it  is  the  result  of  his  own  act ;  and  yet 
that  is  as  shocking  a  perfidy  in  the  trustee  as  can  be  ;  but  the  court 
cannot  interpose,  as  it  would  affect  the  rights  of  others,  of  third  per- 
sons. But  I  don't  know  it  has  been  determined  that  it  shall  escheat, 
discharged  of  the  trusts.  I  shall  give  no  positive  opinion  upon  it.  So 
far  I  ma}'  say,  that  unless  a  trust  can  be  distinguished  from  a  use,  the 
most  learned  judges  say,  the  right  comes  as  a  reversion,  failing  heirs, 
and  that  the  time  of  escheating  is,  when  there  is  a  want  of  a  tenant, 
the  right  of  the  lord  being  paramount.  The  trust  cannot  be  affected 
by  it.  Chudleigh's  Case  :  ^  the  lord  comes  in  the  post  and  not  in  the 
per.  Popham,^  s.  c,  says,  that  is  the  reason  why  the  law  is  so, 
and  I  don't  doubt  the  law.  But  there  is  no  occasion  to  give  a  precise 
opinion  upon  it  till  necessary.  But  I  don't  think  this  is  at  all  a  neces- 
8,ary  dilemma  :  the  lord  may  not  be  entitled  on  death  of  cestui  que  trust 
without  heir,  because  there  is  no  equity,  for  he  has  his  tenant  as  he  had 
before.  But  possibly  there  might  be  an  equity  in  the  other  case  against 
the  lord  ;  for  if  the  trustee  died  without  heir,  and  the  lord  had  the  estate, 
this  court  might  say.  You  shall  hold  to  compensate  yourself  for  j'our 
rent  and  services,  but  we  will  embrace  the  rest  for  the  cestui  que  trust. 

A  difference  was  attempted  to  be  made  between  uses  and  trusts.  I 
have  seen  trusts  invented  for  the  blackest  purposes  in  my  experience, 
and  to  subvert  the  very  constitution  of  this  kingdom.  But  this  is 
nothing  but  the  abuse  of  both.  But  to  try  if  there  is  or  is  not  any 
difference  between  them,  the  best  way  is  to  define  both  :  as,  in  order 
to  show  the  difference  between  one  thing  and  another,  't  is  usual  to  de- 
fine the  one  and  the  other,  and  by  comparing  the  definitions  find  the 
difference.    Finch,  1.  2,  c.  22,  fo.  22  b,  says,  A  use  is,  where  a  man  has 

1  1  Co.  122  o.  M  Co.  Rep.  139  6. 


SECT.  II.]  BUEGESS  V.   WHEATE.  361 

anything  to  the  use  of  another  upon  confidence,  that  the  other  shall  take 
the  profits.  He  who  has  the  profits  has  a  use.  The  other  books  say 
a  use  is  neither  jt<s  mi  re  nor  ad  rem,  &c.  Now,  what  is  a  trust?  A 
confidence  for  which  the  party  is  without  remedy,  but  in  a  court  of 
equity.  Lord  Chief  Justice  does  not  state  any  difference  in  the  meta- 
pliysical  essence  between  a  use  and  a  trust,  but  that  there  was  a  differ- 
ence in  the  law  by  which  the  one  and  the  other  was  directed  ;  and  I 
think  there  is  no  difference  in  the  principles,  but  there  is  a  wide  difference 
in  the  exercise  of  them.  It  was  as  much  a  principle  of  this  court  tliat 
the  use  should  be  considered  as  the  land,  or  as  imitating  the  land,  for- 
merly as  now  ;  though  the  rules  were  not  carried  formerly  so  far,  nor  the 
reasoning  nor  directions  (when  they  were  less  understood)  as  at  present. 
To  give  a  [familiar]  instance  :  The  elements  and  principles  of  geometry 
were  the  same  in  Euclid's  time  as  in  Sir  Isaac  Newton's,  though  in  the 
latter's  time  the  use  of  them  was  much  enlarged.  It  was  said,  the 
difference  consists  in  this  :  that  equity  has  shaped  them  much  more 
into  real  estates,  than  before,  when  they  were  uses.  As  now  there  is 
tenancy  per  curtesy  of  a  trust,  they  may  be  entailed  ;  and  those  en- 
tails barred  by  a  recovery.  But  why  ?  Not  from  any  new  essence 
they  have  obtained,  but  from  carrying  the  principle  further,  quia  cequitas 
sequitur  legem  :  for  as  between  the  trustee  and  the  cestui  que  trust  this 
court  had  jurisdiction  ;  and  I  think  they  should  have  equally  extended 
in  this  court  the  rules  and  principles  of  uses  as  well  as  trusts.  This, 
therefore,  was  the  effect  of  the  equitable  jurisdictions  growing  to  matu- 
rity. Lord  Bacon  says,  they  grew  to  credit  and  strength  by  degrees. 
He  says,  a  use  is  nothing  but  a  general  trust,  where  a  man  will  trust 
to  the  conscience  of  another,  rather  than  to  his  own  estate  and 
possession. 

That  a  use  and  trust  are  the  same,  saems  adopted  by  all  the  great 
persons  who  have  presided  in  this  court.  Gray  v.  Gray  :  Lord  Not- 
tingham, in  a  case  whether  a  purchase  made  in  the  name  of  the  son  was 
a  trust  or  an  advancement,  held  it  the  latter,  and  that  there  should  be 
no  constructive  trusts  ;  he  grounds  himself  upon  this  observation  :  "  AH 
the  books  agree  that  a  feoffment  to  a  stranger  without  consideration 
raised  a  use  to  tlie  feoffor  by  implication."  "■  How  can  this  court 
justify  it  to  the  world  if  it  should  make  the  law  of  trusts  differ  from  tlie 
law  of  uses,  in  the  same  case?"  They  thought  they  were  so  strictly 
bound  by  it,  they  could  not  depart  from  it.  They  act  under  riilcK  and 
checks,  i.e.  a  discretion  put  ui)on  them.  As  in  Attorncy-Gt'ncr.'d 
V.  Scott,'  Lord  Talbot  of  same  opinion.  Jn  Goodwin  n.  Winsinore," 
Lord  Hardwickc  of  same  opinion.  This  court  has  considered  the  trust, 
as  between  the  trustees  and  cestui  que  trust  and  those  claiming  under 
them,  as  imitating  the  possession  ;  and  imicli  more  than  a  use  was 
considered  in  this  court ;  but  not  more  tlian  tlie  court  would  have 
modelled  uses,  if  uses  Iiad  existed  at  tliis  day.     I  do  not  sec  why  the 

1  For    138.  '^  2  Atk.  525. 


3C)2  BURGESS   V.   WHEATE.  [CIIAP.  IIL 

same  dctcrniination  should  uot  be  of  a  use,  as  imitaling  the  possession, 
as  there  is  uow  upon  trusts.  Would  it  not  be  a  bold  stride  to  say,  this 
court  has  considered  trusts  as  a  mere  nullity  and  notional ;  and  that 
they  are  to  be  treated  just  the  same  as  if  they  continued  in  the  seisin 
of  the  creator  of  them  or  the  person  for  whom  they  were  made  ?  Kules 
of  property  are  uot  to  be  questioned  even  by  the  judges,  while  the 
people  continue  satisfied  and  acquiesce  in  them.  None  but  the  legis- 
lature can  alter  them.  Trusts  have  imitated  lands  according  to  the 
strength  of  this  jurisdiction  always.  My  objection  to  the  claim  in  the 
information  is,  not  that  it  is  to  have  a  trust  executed  as  if  it  were  land, 
but  it  is  to  claim  the  execution  of  a  trust  that  does  not  exist.  If 
there  was  a  trust,  I  should  consider  it  merely  as  an  estate,  and  deter- 
mine accordingly.  But  the  creation  of  a  trust  can  never  affect  the  right 
of  a  third  person.  The  trustee  has  the  burden  and  the  legal  privilege. 
Can  this  Court  say  it  is  a  nullity?  and  yet  it  must  be  so  said,  to  take  it 
from  the  trustee.  Servetur  ad  imum.  But  it  cannot  be  said  'tis  a 
nullity  in  that  respect  as  to  a  trust  accepted.  The  conveyance  shall 
subject  the  trustee  to  all  the  fruits  of  tenure.  Though  he  has  continued 
subject  to  all  burdens  when  the  trust  subsisted,  yet  now  it  is  said,  as 
Mrs.  Harding  is  dead,  you  shall  be  considered  so  no  longer.  As  be- 
tween trustee  and  cestui  que  trust,  to  say  it  is  a  nullity  must  be  with  this 
restriction,  that  he  shall  take  no  beneficial  interest  that  the  cestui  que 
trust  can  enjoy.  But  any  other  he  may.  And  therefore  in  respect  to 
members,  sheriffs,  coroners,  the  trustee  was  the  person  who  had  the 
right  to  exercise  it ;  and  the  legislature  was  forced  to  interpose,  "before 
the  cestui  que  trust  could  have  or  enjoy  that  valuable  privilege.  7  &  8 
Wm.  III.  c:  25,  §  7. 

I  can  assign  but  one  reason  why  that  distinction  between  tenancy  by 
curtesy  and  in  dower  has  prevailed ;  and  it  is  applicable  to  the  reason 
of  this  case.  I  have  heard  the  House  of  Lords  was  startled  at  the 
distinction,  and  they  were  told  the  opinion  of  conveyancers  was  so, 
and  that,  if  it  was  altered,  it  might  load  purchasers  with  dower,  who 
thought  they  had  purchased  free  from  it.  And  the  Lords  would  not 
reverse  the  judgment,  because  they  would  not  let  it  affect  the  right  of  a 
third  person.  Now  it  appears  to  me  that  at  law  there  can  be  no 
escheat,  while  there  is  a  tenant  de  jure.  In  equity  there  could  be  none, 
while  trusts  were  called  uses,  and  a  trust  and  a  use  are  exactly  the 
same.  How,  then,  can  I  say  the  lord  shall  lose  his  escheat,  when  any 
man  for  his  own  convenience  puts  his  estate  in  trust?  It  seems,  if  I 
were  to  do  so,  that  I  should  give  law  and  equity,  and  not  pronounce 
upon  law  and  equity. 

Two  centuries  have  passed  since  uses  and  trusts  have  been  admitted, 
and  ^  I  cannot  find  a  dictum  that  the  crown  shall  have  an  escheat  of  a 
trust ;  but  I  find  in  other  books  the  contrary,  and  by  one  of  the  most 

1  This  passage  should  be  as  follows :  "  Two  centuries  have  passed  since  uses  were 
extinguished,  and  since  trusts  have  arisen;  yet,"  &c.     MS.  Serj.  Hill;  1  Eden,  252. 


SECT.  II.]  BUEGESS   V.   WHEATE.  363 

learned  judges  that  ever  adorned  the  profession.  Hale,  247.  Every 
writer  of  learning  has  transcribed  and  adopted  this  position,  so  that  it 
is  confirmed  by  them,  viz.,  by  attainder  of  felony  of  the  feoffee,  the 
lord  shall  have  the  land  by  escheat.  Stanford,  P.  C.  186  ;  Pinb's  Case  ; 
Hix  V.  Attorney  General. 

In  Sir  George  Sandys's  Case,^  the  court  had  no  doubt  upon  that  part 
of  the  case  applicable  to  the  present;  viz.,  upon  forfeiture  of  the  fee- 
simple.  The  doubt  was,  whether  the  forfeiture  should  take  place  on 
a  term  in  gross  or  attendant  upon  the  inheritance.  'T  was  objected 
there,  who  should  have  the  trust?  The  Court  said.  Sir  George  Sandys 
should  hold  the  laud  discharged  of  the  trust  of  the  term,  as  in  the  case 
of  a  grantee  of  a  rent  dying  without  heirs.  And  this  is  an  answer  to 
an  objection  for  want  of  right  and  title  in  the  defendant.  The  grantee 
there  had  purchased  a  perpetual  rent  and  paid  for  it ;  the  grantor  had 
sold  it ;  the  grantee  dies  without  heirs  ;  there  's  nobody  to  call  upon  the 
person  in  pos.session  for  the  rent.  The  reason  why  he  should  hold  it  is, 
here  is  nobody  to  call  upon  him;  thex-efore  no  man  can  have  a  better 
right  than  he.  IIow  came  it  not  to  be  considered  in  that  case  that  it 
was  a  casualty  that  should  come  to  the  crown  as  ultimus  hceres?  Yet 
it  never  was  ;  for  confiscations  are  hard  things,  and  contrary  to  the 
genius  of  a  free  country  ;  and  the  law  of  England  seems  to  have  made 
a  confiscation  in  no  case,  but  where  there  is  a  vacant  possession  :  and 
there  'tis  for  peace  sake,  and  that  quarrels  may  not  ensue.  But  where 
a  person  is  possessed  of  a  thing,  without  getting  it  against  law,  he  has 
a  title.  The  judgment  in  Sir  George  Sandys's  Case  being  an  authority 
in  point,  great  efforts  are  made  to  weaken  the  validity  of  it.  Lor(.l 
Hale's  abilities  have  been  questioned  in  equity.  Then  called  a  case  of 
compassion  ;  and  that  the  family  was  concerned  in  it.  That  the  con- 
tending i)arty  was  the  crown  ;  that  the  Attorney  General  could  not 
drop  the  right,  &c.  Hut  Lord  Hale  determined  on  great  principles 
of  law  ;  and  1  can't  help  remarking,  neither  bar  nor  bench  were  ever 
frightened  at  the  ill  consequences  which  might  follow  which  have  been 
now  mentioned.  Perhaps  they  considered  that  it  was  the  act  of  the 
party  himself.  They  Tuight  carve  out  what  estates  they  pleased,  and 
reserve  the  limitation  in  fee.  Does  tiiis  court  sit  here  to  guard  against 
the  oscitancy  or  inattention  of  conveyancers  in  nialving  use  of  trusts, 
and  not  preventing  an  escheat  to  the  lord?  Wherever  the  king  is  not 
lord  his  pardon  would  not  signify  ;  the  escheat  arises  on  the  judgment. 
If  the  king  pardons  the  felon,  what  hinders  him  from  suing  his  trustee? 
Attainder  don't  prevent  his  assigning  iiis  trust.  'T  is  determined  in 
outlawry  it  does  not.  'T  is  said,  the  I<iug  on  a  legal  escheat  siiail  l)e 
liable  to  the  ecjuity  of  redemjjtion,  and  't  is  said  to  be  held  so  by  Lord 
Hale.'  r»ut  I  don't  know  that  has  been  determined.  And  I  observe, 
though  they  agreed  in  opinion,  tliey  could  not  agree  on  the  remedy, 
though  they  agreed  in  equity.  I  hope  the  Exchecjuer  has  (now)  ascer- 
tained the  remedy.    I  see  an  original  equity  impressed  upon  that  case. 

1  1  W.  Bl.  143,  149;  and  2  Hawk.  T.  C.  c.  27,  §  54. 


Oi' 


04  MIDDLETON   V.    SPICER.  [CHAP    III. 

The  niort.irag:o  is  mnde  on  condition.  I  would  not  have  it  understood 
that  there  's  any  eciuity  for  the  subject,  that  the  king  is  not  equally  en- 
titled to  ;  but  I  think  the  arms  of  equity  are  very  short  against  the  pre- 
rogative. 'T  was  said,  if  a  mortgagor  die  without  heir,  shall  the 
mortgagee  hold  the  land  free?  (1  answer,  Shall  it  escheat  to  the 
crown  ?)  No,  because  in  that  case  the  lord  has  a  tenant  to  do  his  ser- 
vices, and  that  is  the  whole  he  is  entitled  to  in  law  and  equity.  What 
the  justice  might  be  between  the  mortgagor  and  executor  I  shall  not 
trouble  myself  about.  I  think  the  crown  has  not  an  equity  on  which 
to  sue  a  subpwna. 

Original  bill  dismissed  as  to  all  the  rest,  and  the  information  on  the 
part  of  the  crown  dismissed  totally.^ 


MIDDLETON   v.    SPICER. 
In  Chancery,  before  Lord  Thurlow,  C,  March  20,  1783. 

[Reported  in  1  Brown,  Chancery  Cases,  201.] 

This  case  stood  in  the  paper  for  further  directions  in  Easter  Term, 
1780.  Daniel  Goodwin,  seised  in  fee  of  copyhold  lands,  which  he  had 
contracted  to  sell,  and  also  possessed  of  leasehold  and  other  personal 
property,  made  his  will,  and  thereby  devised  his  copyholds  and  lease- 
holds to  be  sold,  and  the  money  arising  from  the  sale  he  bequeathed 
to  his  executors  in  trust,  after  payment  of  debts  and  legacies,  to  pay 
the  residue  to  the  Society  for  the  Propagation  of  the  Gospel,  and  gave 
legacies  to  the  executors.  In  1767  the  testator  died  without  issue. 
In  1773  three  of  the  executors  of  the  testator  filed  a  bill,  insisting  that 
the  devise  in  favor  of  the  Gospel  Society  was  void,  and  claiming  the 
residue  as  undisposed  of. 

1  Henchman  v.  Atty.  Gen.,  3  M.  &  K.  48.5  ;  Taylor  v.  Ilaygarth,  14  Sim.  8 ;  Davall 
V.  New  River  Co.,  3  De  G.  &  Sm.  394 ;  Beale  v.  Symouds,  16  Beav.  406  (conf.  Down 
V.  Morris,  3  Hare,  394,  and  Simpson  v.  Corbett,  10  Ont.  Ap.  32);  Cox  v.  Parker,  22 
Beav.  168  ;  Re  Thompson's  Trusts,  22  Beav.  506;  Harrop's  Est.,  3  Drew.  726;  Sweet- 
ing V.  Sweeting,  33  L.  J.  Ch.  211;  3  N.  R.  240,  8.  c. ;  Gallard  v.  Hawkins,  27  Ch.  D. 
298;  Re  Lashman,  '91,  1  Ch.  258;  Anon.,  78  Law  Times,  77  (cited) ;  Keogh  v.  Mc- 
Grath,  5  L.  R.  Ir.  478  Accord. 

It  has  been  argued  with  much  force  that  the  crown,  though  not  entitled  on  the 
principle  of  escheat,  should  nevertheless  have  the  trust,  on  the  failure  of  the  heirs  of 
the  cestui  que  trust,  as  a  bonum  vacans.  4  L.  Q.  Rev.  330-336.  The  American  cases, 
which  are  opposed  to  Burgess  v.  Wheate,.must  rest  upon  this  doctrine.  Matthews  v. 
W(X)d,  10  Gill  &  J.  443  (see  also  Smith  v.  McCann,  24  How.  405);  Johnson  v.  Spicer, 
107  N.  Y.  185 ;  Commonwealth  v.  Naile,  88  Pa.  429  (statutory). 

Conf.  Onslow  v.  Wallis,  1  MacN.  &  G.  506. 

By  an  English  statute,  47  &  48  Vict.  c.  71,  §  4,  equitable  interests  in  land  are  now 
brought  within  the  rules  of  escheat.  —  Ed. 


SECT.  II.]  MIDDLETON   V.    SPICER.  365 

On  the  nth  November,  1774,  thera  was  a  decree,  that  the  contract 
for  the  sale  of  the  copyholds  should  be  carried  into  execution,  and  the 
money  to  arise  therefrom  be  considered  as  part  of  the  personal  estate, 
and  that  the  devise  of  the  leasehold  estate  to  the  charity  was  void  ;  it 
was  therefore  decreed  to  be  sold,  and  the  next  of  kin  (hone  of  whom 
were  before  the  court)  were  to  go  before  the  Master  and  prove  their 
kindred.  The  leasehold  was  sold  for  £1,560.  Upon  an  inquiry  after 
next  of  kin,  nobody  claimed  as  such.  And  the  question  now  was, 
whether  upon  the  void  devise  the  executors  were  beneficially  entitled, 
or  the  crown,  the  Attorney  General  being  made  a  party  to  the  bill,  and 
claiming  in  that  behalf. 

3Ir.  Kenyan  (for  the  executors). 

J/r.  Attorney  General,  contra. 

3Ir.  Kenyan  (in  reply).^  ^ 

Lord  Chancellor.  I  do  not  see  how  this  case  is  distinguishable  in 
principle  from  Burgess  v.  "NVheate.  The  devise  vests  the  legal  property 
in  the  executor.  If  there  is  no  executor,  the  crown  may  grant  letters- 
patent  to  take  out  administration.  The  question  results,  whether  the 
executor,  being  appointed  only  as  a  trustee,  can  claim  as  highly  as 
an  occupant  at  common  law.  "Where  there  is  a  trustee,  the  general 
rule  of  the  court  is  that  he  can  have  no  other  title.  Mr.  Kenyon 
contends,  that  the  executor,  being  clothed  with  a  legal  title,  has  a 
right  to  hold  the  property.  Burgess  v.  Wheate  was  determined  upon 
divided  opinions,  and  opinions  which  continue  to  be  divided,  of  very 
learned  men.  The  argument  of  the  defect  of  a  tenant  seems  to  be  a 
scanty  one.  Whether  that  case  is  such  a  one  as  binds  only  when  it 
occurs  speciatim,  or  affords  a  general  principle,  is  a  nice  question. 
Thus  much  is  decided,  that  in  the  case  of  a  trustee  who  has  merely  an 
oflice,  the  court  has  been  of  opinion  that  the  same  claim  which  would 
have  been  competent  if  it  had  been  at  common  law  is  not  competent 
for  such  a  trustee.  Here  the  executor  has  a  common-law  right.  The 
crown  would  have  had  a  right  had  tliere  been  no  executor.  This  case, 
I  think,  is  obnoxious  to  every  principle  that  can  be  drawn  from  Burgess 
V.  Wheate.  The  legal  estate  in  the  trustee  must  remain  in  him,  unless 
there  is  a  claim  against  liim  which  atT(!cts  his  conscience.  If  beyond 
the  general  title,  there  must  l)e  a  privity  with  the  testator;  the  crown 
has  no  such  privity.  If  the  trustee  ought  to  hoM  it  for  every  person 
who  would  have  been  entitled  if  it  were  at  law,  then  he  should  hold  it 
for  the  rrown  as  well  as  any  other  person. 

The  cause  stood  over,  and  now  came  before  the  court  for  judgnient. 
The  reporter  was  absent,  but  has  been  favored  with  the  following 
note. 

LoRi)  Chan'Celloi!.  It  would  be  mere  pedantry  to  run  over  all  the 
cases  to  be  met  with  on  tiiis  sul)joft,  which  are  rollcctcd  and  fully 
Btated  in  IJurgcss  v.  Wheate.     This  is  not  a  case  in  which  the  assets 


'  o^ 


'  The  arguments  of  counsel  are  omitted.  —  Ed. 


or. 


G6  MIDDLETON   V.    SriCER.  [CHAP.  III. 

can  be  marshalled,  which  is  never  done,  unless  to  make  a  debt  of  an 
inferior  nature  payable.  Lord  Mansfield  did  not  assent  to  the  argu- 
ment of  the  Master  of  the  Rolls  in  Burgess  v.  Wheate,  respecting  an 
escheat ;  but  no  such  question  arises  in  the  present  case.  Here  the 
executors,  having  legacies  bequeathed,  and  being  clearly  trustees, 
cannot  by  any  possibility  take  any  beneficial  interest.^  In  Burgess  v. 
"Wheate,  and  every  other  case  that  is  to  be  met  with,  the  Attorney  Gen- 
end  has  been  a  party,  which  shows  that  it  was  always  the  opinion  that 
the  crown  had  such  an  interest  in  cases  of  this  kind  that  it  was  neces- 
sary to  make  him  a  party.  The  executors  being  excluded,  and  no 
relations  to  be  found,  I  consider  the  executors  as  much  trustees  for 
the  crown  as  they  would  have  been  for  any  of  the  next  of  kin,  if  these 
could  have  been  discovered." 

Therefore  decreed  in  favor  of  the  crown,  but  directed  all  the  execu- 
tors' expenses  to  be  paid. 

1  See  Martin  i\  Rebow,  1  Bro.  C.  C.  154,  notes  and  cases  cited;  2  Story  Eq.  Jur.  c. 
33,  §  1208,  and  notes. 

2  Barclay  v.  Russell,  3  Ves.  Jr.  424 ;  Taylor  v.  Hay  garth,  14  Sim.  8  ;  Powell  v.  Mer- 
ritt,  1  Sm.  &  G.  381  ;  €radock  v.  Owen,  2  Sm.  &  G.  241  ;  Russell  v.  Clowes,  2  Coll. 
648  (semble) ;  Read  v.  Stedman,  26  Beav.  495 ;  Darrah  v.  McNair,  1  Ashm.  236  (seinble} ; 
Accord. 

lu  Taylor  v.  Haygarth,  14  Sim.  8,  Sir  L.  Shadwell,  V.  C,  said,  p.  18 :  "  The  dis- 
tinction between  the  case  of  Middleton  v.  Spicer  and  the  case  before  me  is,  that  in  the 
case  of  Middleton  v.  Spicer  the  subject  of  dispute  was  personal  estate.  It  was  a  mere 
chattel  real ;  and  there  is  no  doubt  that,  by  the  law  of  the  land,  the  crown  is  entitled 
to  the  undisposed-of  personal  estate  of  any  person  who  happens  to  die  without  next  of 
kin." 

In  Fox  V.  Horah,  I  Ired.  Eq.  358,  a  debt  due  to  A.  as  trustee  for  a  corporation  was 
held  to  be  extinguished  in  equity  when  the  corporation  became  defunct.  This  is  clearly 
erroneous.     The  fcjtate  was  entitled,  as  in  Bishop  v.  Curtis,  18  Q.  B.  878.  —  Ed. 


SECT.  III.]  PAWLETT   V.   THE   ATTORNEY   GENERAL.  367 


SECTION  III. 
By  Forfeiture. 

PAWLETT  V.   THE  ATTORNEY  GENERAL. 
In  the  Exchequer,  Trinity  Term,  1667. 

[Reported  in  Hardres,  465.] 

In  a  bill  to  redeem  a  mortgage,  the  ease  aj^peared  to  be  thus :  viz., 
the  plaintiff  had  mortgaged  lauds  in  fee  to  one  Ludlow  for  security  of 
£3,000  with  interest,  and  bound  himself  in  a  statute  and  recognizance 
to  perform  the  covenants  of  the  mortgage,  and  to  pay  the  money  with 
interest  at  a  certain  day.  The  day  past,  the  money  unpaid.  The 
mortgagee  by  his  will  devised  all  his  goods,  chattels,  debts,  and  per- 
sonal estate,  his  debts  and  legacies  being  paid,  to  his  executor,  and 
dies.  Edmund  Ludlow,  son  and  heir  of  the  mortgagee,  is  attainted 
of  high  treason  by  the  new  act  of  12  Car.  II.  The  king  seizes ;  and 
the  executor  extends  the  plaintiff's  lands  upon  the  recognizance,  who 
thereupon  exhibits  his  bill  against  the  king  and  the  executor,  and  in  it 
suggests  that  he  could  not  pay  tlie  money  at  the  day  at  the  place  ap- 
pointed, viz.  in  the  Strand  in  Middlesex,  by  reason  of  the  plague  ;  and 
that  afterwards  the  mortgagee  accepted  the  interest,  and  waived  the 
forfeiture :  and  the  question  now  upon  a  demurrer  to  the  bill  was, 
whether  or  no  the  plaintiff  could  have  any  remedy  against  the  king, 
to  have  a  redemption?' 

H.\LE,  Chief  Baron.  This  is  a  case  of  great  concern,  and  deserves 
great  consideration.  It  was  made  a  question  in  this  present  Parliament 
in  the  House  of  Lords,  in  the  Earl  of  Cleveland's  case  ;  fust,  whether 
or  no  there  be  a  right  of  redemption  in  tiiis  case  against  tlie  king? 
And,  secondly,  if  tliere  be,  what  riMuedy  must  l)e  taken?  And  I  an- 
swered, as  I  take  the  law  to  be,  that  in  natin-al  justice  redemption  of  a 
mortgage  lies  against  the  king.  But  to  the  other  question  I  ninde  no 
answer ;  becau.se  I  took  it  to  be  a  pouit  of  great  importance.  But 
I  am  of  opinion,  tiiat  the  king  cannot  l»e  compelled  to  recovery;  Itub 
that  an  'i/wjccas  mdnnni  only  lies  in  such  case.  And  this  is  all  that 
can  be  done,  if  a  trustee  forfeit  the  estate.  And  it  is  to  be  considered 
here,  whether  or  no  there  be  a  right  of  redemption  against  the  lord  by 
escheat  (for  so  the  king  is  in  here,  and  not  by  his  prerogative),  and 
how  the  coiu'se  of  chancery  is  in  caMc  of  the  rodomption  of  mortgages, 
who  shall  redeem,  and  against  wlK)in.     I  agree  the  case  of  a  statute 

'  The  arguments  of  couijHel  are  omittcil.  —  En. 


368  FAWLETT  V.   THE   ATTORNEY   GENERAL.  [CHAP.  III. 

nierehanl,  for  lie  comes  iu  merely  by  llic  party,  viz.  by  the  act  of  the 
party,  ami  the  remed}'  that  the  law  gives  thereupon ;  and  it  is  worth 
inquirinii'  how  the  presidents  are,  where  a  trustee  for  years  is  outlawed, 
and  the  lands  seized,  what  remedy  the  cestxd  que  trust  has  there?  But 
admitting  that  case,  yet  it  may  be  otherwise  iu  case  of  a  fee-simple  ;  as 
Cestui  que  trust  for  years  may  forfeit  his  interest  for  felony  ;  but  cestui 
que  trust  in  fee  cannot ;  and  I  agree  the  case  in  3  Ed.  III.  And  I 
conceive  that  a  mortgage  is  not  merely  a  trust,  but  a  title  in  equity. 
And  the  matter  of  redemption,  it  seems,  is  not  the  main  business  in 
the  case  ;  for  Mr.  Attorney  General  otfers  to  give  way  to  a  redemp- 
tion, upon  payment  of  the  money  :  but  the  point  is,  who  shall  have 
the  money,  whether  the  executor  and  devisee,  or  the  king?  for  both 
contend  for  it. 

And  the  Chief  Baron  further  said :  If  the  condition  of  a  mortgage 
be  to  re-enter  upon  payment  of  the  money  to  the  executors  or  ad- 
ministrators, there  without  doubt  the  heir  should  not  have  the  money 
after  forfeiture  ;  because  the  mortgagee  looked  upon  it  only  as  a 
chattel ;  though  if  the  word  "  heirs  "  were  inserted  into  the  condi- 
tion, it  would  be  more  a  question.  But  he  said,  he  took  the  law  to 
be  the  same  in  both  cases.  Yet  he  delivered  no  opinion  in  the  prin- 
cipal case,  but  ordered  a  case  to  be  made  of  it.  And  the  cause  was 
adjourned. 

Afterwards  in  Hilary  term,  in  annis  19  «&  20  Car.  II.,  it  was  argued 
again  by  counsel  on  both  sides  ;  and  much  to  the  same  effect  as  before. 
And  again  the  king's  counsel  insisted,  that  a  mortgagor  was  not  reliev- 
able  against  the  king  in  equity  : 

First,  because  the  king  is  not  liable  to  a  trust ;  and  a  mortgage  for- 
feited is  of  the  same  nature. 

Secondly,  because  by  the  escheat  the  ancient  right  .and  tenure  is  de- 
stroyed, and  the  king  is  in  jia-e  coronan. 

Thirdly,  estates  in  dower,  frank-bank,  tenancies  by  the  curtesy,  aud 
of  disseisors,  are  not  liable  to  trusts,  because  they  are  in  the  post;  other- 
wise of  occupancies. 

Fourthly,  the  chancery  has  no  jurisdiction  over  the  king's  conscience, 
but  over  the  consciences  of  subjects  only  ;  for  that  it  is  a  power  dele- 
gated by  the  king  to  the  chancellor,  to  exercise  the  king's  equitable  au- 
thority betwixt  subject  and  subject.  Nor  is  it  within  the  statute  of  33 
Hen.  VIII.  cap.  39,  for  equity  against  the  king  in  the  exchequer.  And 
they  cited  Dyer,  8,  263;  Lane's  Rep.  54;  Yelv.  115;  Lane's  Rep., 
Bowie's  case. 

Halk,  Chief  Baron.  There  is  a  diversity  betwixt  a  trust  and  a  power 
of  redemption  ;  for  a  trust  is  created  by  the  contract  of  the  party,  and 
he  may  direct  it  as  he  pleaseth ;  and  he  may  provide  for  the  execution 
of  it,  and  therefore  one  that  comes  in  in  the  post  shall  not  be  Irable  to 
it  without  express  mention  made  by  the  party  ;  and  the  rules  for  exe- 
cuting a  trust  have  often  varied,  and  therefore  they  only  are  bound  by 
it,  who  come  in  in  privity  of  estate.     A  tenant  in  dower  is  bound  by 


SECT.  III.]  PAWLETT  V.   THE   ATTORNEY    GENERAL.  369 

it,  because  she  is  in  in  the  x>er,  but  not  a  tenant  by  the  curtesy,  who 
is  in  i\i%  post.  So  all  who  come  in  in  privity  of  estate,  or  with  notice, 
or  without  a  consideration.  But  a  power  of  redemption  is  an  equitable 
right  inherent  in  the  land,  and  binds  all  persons  in  the  post,  or  other- 
wise. Because  it  is  an  ancient  right,  which  the  party  is  entitled  to  in 
equit}'.  And  although  by  the  escheat  the  tenure  is  extinguished,  that 
will  be  nothing  to  the  purpose,  because  the  party  may  be  recompensed 
for  that  by  the  court,  by  a  decree  for  rent,  or  part  of  the  land  itself,  or 
some  other  satisfaction.  And  it  is  of  such  consideration  in  the  eye  of 
the  law,  that  the  law  takes  notice  of  it,  and  makes  it  assignable  and 
devisable. 

But  the  most  considerable  things  in  the  case  are  : 

First,  that  the  king  is  in  actual  possession,  and  cannot  be  removed  in 
equity  by  an  amoveas  vianitm,  as  he  may  at  law. 

Secondly,  whether  there  will  not  be  a  diversity  betwixt  the  estate  of 
a  ward  and  an  escheat :  for  in  cases  of  wardships,  the  court  of  wards 
had  jurisdiction  by  the  33d  of  Hen.  VIII.,  but  in  this  case  here  is  an 
actual  inheritance  in  the  king. 

Thirdly,  the  statute  of  33  Hen.  VIII.  c.  39,  is  to  be  considered, 
which  gives  relief  in  equity  against  the  king.  And  I  conceive  clearly, 
that  in  this  case  the  executor  would  be  relieved  against  the  heir  for  the 
money ;  because  in  common  estimation  it  is  but  a  personal  estate. 

But  Baron  Atkyns  was  strongly  of  opinion  that  the  part}-  ought  in 
this  case  to  be  relieved  against  the  king,  because  the  king  is  the  foun- 
tain and  head  of  justice  and  equity ;  and  it  shall  not  be  presumed  that 
he  will  be  defective  in  either.  And  it  would  derogate  from  the  king's 
honor  to  imagine,  that  what  is  equity  against  a  common  person  should 
not  be  equity  against  him.* 

'  "  Pawlett  V.  Attorney  General,  Hard.  465,  in  which  Lord  Hale  and  Baron  Atkins 
thought  the  king  wa.s  bound  hy  an  equity  of  redemption,  was  not  a  ca.se  of  eschrut,  as 
called  by  Lord  Hale,  but  a  forfeiture."     Lewin,  Trusts  (7th  ed),  227  u.  (  /').  — Ed. 


370  THE   EARL   OF  WORCESTER  V.   FINCH.  [ciIAr.  III. 


SECTION   IV. 
j5z/  Disseisin. 

LORD   COMPTON'S   CASE. 

In  the  Common  Bench,  Trinity  Term,  1580. 

[Reported  in  4  Leonard,  196.1] 

Note,  it  was  hoklen  by  Lord  Anderson,  C.  J.,  that  if  cestui  que 
use  after  the  Statute  1  Rich.  III.  leaseth  for  years,  and  afterwards  the 
feoffees  release  to  the  lessee  and  his  heirs,  having  notice  of  the  use ; 
that  that  release  is  to  the  first  use.  But  where  the  feoffees  are  dis- 
seised and  they  release  to  the  disseisor,  although  that  they  [he  ?]  have 
notice  of  the  use,  yet  the  same  is  to  the  use  of  the  disseisor ;  and  no 
subpoena  lieth  against  the  disseisor. 


THE   EARL   OF  WORCESTER  and  Others  v.   SIR  MOYLE 
FINCH   AND   ELIZABETH   his  Wife. 

In  Chancery,  Michaelmas  Term,  1600. 

[Reported  in  Fourth  Institute,  85.] 

The  queen,  being  seised  of  the  manor  of  Raveston  and  of  certain 
lands  in  Stokegoldington  (which  the  plaintiff  pretended  to  be  a  manor 
either  in  the  right  or  reputation),  granted  by  her  letters-patent  the 
manors  of  Raveston  and  Stokegoldington  to  the  said  Sir  Moyle,  and 
John  Awdelye,  and  their  heirs  ;  but  this  was  upon  confidence,  that  they 
should  grant  the  manor  of  Raveston  to  Sir  Thomas  Ileneage  and  Anne 
his  wife,  and  to  the  heirs  of  Anne ;  and  the  manor  of  Stokegoldington 
to  Sir  Thomas  and  Anne,  and  the  heirs  of  Sir  Thomas.  Sir  Moyle  and 
Awdelye,  bj'  deed  indented  and  inrolled  termino  Trin.  1588,  30  Eliz. 
in  this  court,  for  £1,000  bargained  and  sold  to  Sir  Thomas  Heneage 
and  his  wife  the  manors  of  Raveston  and  Stokegoldington,  and  the  site 
of  the  priory  of  Raveston  in  the  county  of  Buck.,  and  all  other  their 
lands,  tenements,  and  hereditaments  in  Raveston,  Weston,  Pidington, 
and  Stokegoldington,  in  the  county  of  Buck.  To  have  and  to  hold  the 
manor  of  Raveston  and  the  site  of  the  said  priory,  and  all  the  premises 

1  2  Leon.  211  s.  c.  —  Ed. 


SECT.  lY.]  THE   EAEL   OF   WOECESTER  V.   FINCH.  371 

in  Raveston,  "Weston,  Pidington,  and  Stokegoldingtou  (other  than  the 
said  manor  of  Stokegoldingtou),  to  the  said  Sir  Thomas  and  dame 
Anne,  and  the  heirs  of  the  said  dame  Anne  ;  and  to  have  and  to  hold 
the  said  manor  of  Stokeg.  to  the  said  Sir  Thomas  and  dame  Anne,  and 
to  the  heu's  of  Sir  Thomas.  Sir  Thomas  had  issue  by  the  said  dame 
Anne  the  said  Elizabeth,  one  of  the  defendants,  his  only  child,  and 
afterwards  the  said  dame  Anne  died.  The  defendant  alleged  that  Sir 
Thomas  was  disseised  of  Stokegoldington,  and  the  plaintiff  denied  it.' 
And  after  Sir  Thomas,  by  deed  indented  and  inroUed,  bargained  and 
sold  the  manor  of  Stokegoldington  to  the  plaintiff  for  payment  of  his 
debts  and  died  ;  and  for  payment  of  his  debts  they  exhibited  their  bill 
against  Sir  Moyle,  and  the  said  Elizabeth  his  wife,  for  the  said  manor 
of  Stokegoldington,  and  the  Lord  Chancellor  decreed  it  for  the  plain- 
tiff. And  upon  a  petition  preferred  by  the  defendants  to  Queen  PLliza- 
beth,  she  referred  the  consideration  of  the  whole  case  to  all  the  judges 
of  England ;  and  after  hearing  of  the  counsel  of  both  parts  on  several 
days,  and  conference  between  themselves,  these  points  for  rules  in 
equity  were  resolved  :  First,  that  if  there  were  any  disseisin  that  noth- 
ing passed  to  the  plaintiff  either  in  right  or  equity,  for  the  disseisor 
was  subject  to  no  trust,  nor  any  subpoena  was  maintainable  against 
him,  not  only  because  he  was  in  the  j)ost^  but  because  the  right  of  in- 
heritance or  freehold  was  determinable  at  the  common  law  and  not  in 
the  chancery,  neither  had  cestui  que  use  (while  he  had  his  being)  any 
remedy  in  that  case.  Secondly,  it  was  resolved  by  all  the  justices,  that 
admitting  that  Sir  Thomas  Heneage  had  a  trust,  yet  could  not  he  assign 
the  same  over  to  the  plaintiff,  because  it  was  a  matter  in  privity  between 
them,  and  was  in  nature  of  a  chose  in  action,''  for  he  had  no  power  of  the 
land,  but  only  to  seek  remedy  by  subpama,  and  not  like  to  cestui  que 
use,  for  thereof  there  should  be  jwssessio  fratris,  and  he  should  be 
sworn  on  juries  in  respect  of  the  use,  and  he  had  power  over  the  laud 
by  the  statute  of  1  R.  III.  cap.  1,  and  if  a  bare  trust  and  confidence 
might  be  assigned  over,  great  inconvenience  might  thereof  follow  by 
granting  of  the  same  to  great  men,  &c.  Thirdly,  when  the  lanil  de- 
scended to  Elizal)eth,  one  of  tlie  defendants,  as  lioir  to  her  mother,  and 
the  trust  descended  to  her  from  iier  fatlier,  the  trust  was  drownetl  and 
extinguished.  Fourthly,  when  any  title  of  freehold  or  otlior  matter 
determinable  by  the  common  law  come  incidently  in  question  in  this 
court,  the  same  cannot  be  decided  in  chancery,  but  ought  to  be  referred 
to  the  trial  of  the  common  law,  where  tiie  l)arty  grieved  may  be  relieved 

'  U_v  tlic  rf'jKirt  of  tho  sanio  c.iho  in  2  And.  Ifi.'J.Sir  M<>\  lo  was  tlio  di.ssri.si'o.  "  After 
which  in  the  same  court  it  w;w  shown  that  at  the  tiinfi  of  #i(?  iiH.surancc  made  (ii.s  ahovo 
i»  shown)  by  the  said  Sir  Moyle,  &c.,  tlioy  wore  dijweiHod  (»f  all  the  lands  in  Stokepold- 
ington,  »o  that  notliing  couiil  ho  conveyed  of  thiw  to  r)thers  hy  Huch  convey.-ince."  —  I',d. 

^  "  An  hnshand  posHCssed  of  a  lea.Mc  for  years,  axHign.^  it  to  H.  in  trust  for  iiinidclf  and 
his  wife;  the  hushand  cannot  assign  this  trust,  for  a  trust  is  nothing  in  law.  .  .  .  As- 
signments of  trusts  l)eget  strife  and  maintenance,  and  are  Void  in  law."  Anon.  (l-'iTfi), 
Jenk.  0,  Cent.  244,  \>l.  .30.  15ut  a  tru-it  was  iield  to  he  ussignalde  in  WarniBtrey  v.  'Jau 
field  (1628),  1  Ch.  Kep.  29.  —  Eu. 


372  THE   EARL   OF   WORCESTER   %\  FINCH.  [CHAP.  III. 

by  error,  attaint,  or  by  action  of  highor  nature.  And  when  the  suit  is 
for  evidences,  the  certainty  whereof  the  phiintiff  surniiseth  lie  knoweth 
not,  and  without  them  he  supposeth  that  he  cannot  sue  at  the  common 
law.  It  was  resolved  that  if  the  defendant  make  no  title  to  the  land, 
tiien  the  court  hath  just  jurisdiction  to  proceed  for  the  evidence  ;  but  if 
lie  make  title  to  the  land  by  his  answer,  then  the  plaintit¥  ought  not  to 
proceed,  for  otherwise  by  such  a  surmise,  inheritances,  freeholds,  and 
matters  determinable  by  the  common  law  shall  be  decided  in  chancery 
in  this  court  of  equity.  And  thus  were  these  points  resolved  by  Sir 
John  Popham,  Sir  Edmond  Anderson,  Sir  William  Periam,  and  Walmes- 
lye,  Gawdye,  Fenner,  and  Kingesmill,  justices,  and  Clark  and  Savill, 
barons  of  the  exchequer  ;  and  all  this  amongst  other  things  they  certified 
under  their  hands  into  the  chancery,  and  thereupon  the  former  decree 
was  reversed.  And  in  debating  of  this  case  it  was  resolved  by  the  two 
chief  justices,  chief  baron,  and  divers  other  justices,  that  if  a  man  make 
a  conveyance,  and  express  an  use,  tl»e  party  himself  or  his  heirs  shall 
not  be  received  to  aver  a  secret  trust,  other  than  the  express  limitation 
of  the  use,  unless  such  trust  or  confidence  does  appear  in  writing,  or 
otherwise  declared  by  some  apparent  matter.  And  Popham  said,  that 
covin,  accident,  and  breach  of  confidence  were  within  the  proper  juris- 
diction of  this  court.' 

1  See  Turner  v.  Buck,  22  Vhi.  Ab.  21,  pi.  5. 

There  is  a  perfect  analogy  between  the  converter  of  a  chattel  and  the  disseisor  of  land 
in  regard  to  their  relations  to  the  cestui  que  trust  of  the  misappropriated  property. 
Colburu  V.  Broaghton,  9  Ala.  35i.  The  defendant,  Broughton,  under  a  judgment 
against  A.,  levied  upon  and  sold  certain  chattels  belonging  to  one  Coolidge,  as  trustee 
for  the  plaintiff.  The  plaintiff's  bill  against  Broughton  was  dismissed.  Goldthwaite, 
J.,  said,  p.  362  :  "  We  readily  concede  that  a  purchaser  of  trust  property  from,  or  under 
the  trustee,  with  notice  of  the  trust,  is  himself  chargeable  in  equity  as  a  trustee.  But 
here  there  is  nothing  to  eonnett  the  defendant  with  the  trustee,  and  they  claim  adversely 
to  him ;  it  is  not  his  title  which  they  held,  or  one  derived  through  him,  but  their  claim, 
if  good  at  all,  is  so  entirely  independent  of  the  trust  deed.  To  insi.st  that  equity  can 
take  jurisdiction  of  a  title  thus  disputed,  would  invest  it  with  cognizance  of  all  disputes 
concerning  property  upon  which  a  trust  had  ever  been  created. 

"  It  is  entirely  evident,  that  property  held  in  trust  is  as  much  the  subject  of  in- 
quiry as  that  which  is  not,  but  it  is  too  common  a  mistake  to  suppose  the  creation  of  a 
trust  carries  the  property  itself  into  equity.  The  law  usually  provides  a  different  and 
more  appropriate  forum  to  determine  conflicting  and  adverse  titles  to  the  property.  We 
fully  recognize  the  rule,  that  a  purchaser  of  trust  proj)erty  from,  or  under  the  trustee, 
with  notice  of  the  trust,  is  himself  chargeable  in  equity  as  a  trustee.  (Bank  of  Alabama 
V.  Williamson,  7  Ala.  Kep.  906.)  But  according  to  the  allegations  of  the  bill,  Broughton 
never  had  possession  of  the  jjroperty  sold,  as  the  administrator  of  Coolidge,  and  was  not 
therefore  affected  by  the  obligations  which  his  intestate  had  assumed  with  relation  to  it. 
He  obtains  a  judgment  against  Colburn,  and  directs  a  levy  upon  property  which  that  per- 
son is  supposed  to  own.  In  (fbing  this,  we  apprehend  he  stan<is  as  any  other  plaintiff  who 
wrongfully  directs  a  levy,  and  is  responsible  to  the  injured  jjarty  in  trespass  or  trover. 
The  title  sold  under  his  execution  was  not  the  title  of  Coolidge,  the  trustee,  but  that  of  a 
third  person  which,  if  defective,  invests  the  purchaser  with  one  that  is  of  the  same  nature. 
Whatever  may  be  the  merits  of  this  title,  the  purchaser,  it  is  evident,  does  not  derive  it 
from  the  trustee,  either  mediately  or  immediately,  and  in  no  sense  can  be  said  to  be  in 
collusion  with,  or  holding  under  him.  In  point  of  fact,  the  whole  case,  as  to  these  pur- 
chasers, makes  it  apparent  they  claim  adversely  to  the  trust  estate,  and  in  spite  of  it.   It 


SECT.  IV.]  THE   EARL   OF   WORCESTER   V.   FINCH.  373 

is  then,  as  to  all  the  defendants  except  the  husband,  an  attempt  to  litigate  the^  title  to 
personal  property  in  a  court  of  equity.  We  know  of  no  condition  of  facts  under  which  a 
court  of  this  description  can  determine  such  a  question.  Doubtless  a  cestui  que  trust  may 
go  into  equity  to' prevent  a  sale  of  the  trust  estate,  until  the  right  cau  be  ascertained  else- 
where. To  this  effect  is  Cozzens  v.  Calhoun,  3  Ala.  Rep.  49m,  where  an  injunction  was 
sustained  by  a  /tme  covert  to  restrain  her  husband's  creditor  from  selling  her  separate 
estate.  Here,  however,  the  property  has  already  been  converted,  and  the  suit  is,  to 
regain,  or  have  satisfaction  for  it,  from  persons  who  neither  claim  under,  or  are  in 
privity  with  the  trustee. 

"  The  mere  circumstance  that  a  trust  is  created  upon  certain  property,  does  not  in- 
vest a  court  of  Chancery  with  jurisdiction  to  determine  the  disputes  which  may  arise 
with  respect  to  the  title  to  tiiat  property.  If  it  was  so  every  cestui  que  trust  might  sue 
iu  equity,  instead  of  his  trustee  at  law,  for  injuries  done  to  it.  Lord  Kedosdale  said,  a 
cestui  que  trust  is  always  barred  by  length  of  time  operating  against  the  trustee.  If  the 
latter  does  not  enter,  and  the  cestui  que  trust  does  not  compel  him  to  enter  as  to  the 
person  claiming  paramount,  the  cestui  que  trust  is  barred.  (Hoveuden  i\  Lord  Aunes^y, 
2  Sch.  &  Lef.  6:29.)  And  Lord  Hardwicke  had  long  liefore  held,  the  rule  applied  only 
as  between  cestui  que  trust  and  trustee,  and  not  between  them  on  one  side  and  a  stranger 
on  the  other.  (Lewellen  v.  Mackworth,  2  Equity  Ca.  Ab.  .579.)  In  Fincli's  case,  4 
Inst.  8.5,  so  long  ago  as  the  reign  of  Elizabeth,  it  was  resolved  by  till  the  judges,  that  a 
disseisor  was  subject  to  no  trust,  nor  any  subpoena  was  maintainable  against  him  :  not 
only  because  he  was  in  the  post,  but  because  the  right  of  inheritance  of  freehold  was 
determinable  at  the  common  law,  and  not  in  Chancery  ;  neither  had  the  cestui  que  tru:it 
any  remedy  in  that  case.  To  the  same  effect  is  Mr.  Sugden,  in  his  edition  of  Gilbert 
on  Uses,  429,  note  G.,  who  there  says,  that  persons  claiming  the  legal  estate  by  an 
actual  disseisin,  without  collusion  with  the  trustee,  will  not  be  bound  by  the  trust. 
Therefore,  if  J.  oust  A.,  who  is  a  trustee  for  B.,  and  a  claim  is  not  made  iu  due  time, 
A.  will  be  barred,  and  his  cestui  que  trust  with  him,  although  J.  had  notice  of  the 
trust.  These  citations  seem  conclusive  to  show,  that  the  creation  of  a  trust  has  no 
effect  to  draw  the  contest  with  respect  to  the  title  of  the  property  to  a  court  of  Chan- 
cery, and  that  it  is  only  persons  who  are  trustees,  or  who  claim  under  such,  or  by  col- 
lusion with  them,  who  are  accountable  to  the  cestui  que  trust."  —  Ed. 


Uses.  —  In  Chuddlcigh's  Case,  1  Rep.  120  a,  Popham.C.  J.,  said,  139  b :  "  The  rea- 
son why  a  disseisor  should  not  stand  seised  to  an  use  was,  because  cestui  que  use  had 
no  remedy  by  the  common  law  for  any  use,  but  his  remedy  was  only  in  chancery ;  and 
because  the  right  of  a  freehold  or  inheritance  could  not  bo  determined  in  chancery,  hi.s 
title  should  not  bo  drawn  into  examination  there ;  and  for  this  reason  a  disseisor  shall 
not  be  compelled  iu  the  chancery  to  execute  an  estate  to  cestui  que  use,  but  cestui  que 
use  shall  coini)fd  his  feoffees  in  tlie  Court  of  Chancery  to  enter  ujion  thedi.sscis<ir,  or  to 
recover  the  land  against  hiiu  at  the  common  law  :  and  then  the  ciiancery  will  compel 
the  feoffees  to  execute  the  estate  according  to  the  use."  —  Ed. 


37-i  NOEL   V.    JEVON.  [CHAP.  IIL 


SECTION  V. 

By   3Iarriage. 

(a)  By  Markiage  of   the  Trustee. 

NOEL  V.  JEVON. 

In  Chancery,  Michaelmas  Term,  1678. 

[Reported  in  Freeman's   Chancery  Cases,  43.] 

The  bill  was  to  be  relieved  against  the  defendant's  dower,  her  hus- 
V;and  being  only  a  trustee  ;  and  it  appearing  that  the  husband  was  but 
a  trustee,  the  defendant  was  barred  of  her  dower,  contrary  to  the  opinion 
of  Nash  V.  Preston ;  *  and  so  it  was  said  is  the  constant  practice  of 
the  court  now.-^ 

«  Cro.  Car.  191. 

2  Bevant  v.  Pope,  Freeni.  C.  C.  71  ;  Hinton  v.  Hinton,  2  Vcs.  631 ;  Powell  v.  Mon- 
son,  3  Mason,  347,  364  ;  Kobison  i;.  Codnian,  1  Suma.  121,  129;  Bailey  v.  West,  41 
111.  290;  Kiugr.  Bushell,  121  111.  656;  Langworthy  v.  Heeb,  46  Iowa,  64;  Dean  v. 
Mitchell,  4  J.  J.  Marsh.  451 ;  Bartlett  v.  Gouge,  5  B.  Mon.  152 ;  Dimond  v.  Billingslea, 
2  Har.  &  G.  264;  Cowniau  v.  Hall,  3  Gill  &  J.  398;  White  v.  Drew,  42  Mo.  561  ;  Pres- 
cott  V.  Walker,  16  N.  H.  340, 343  (semble) ;  Hopkiuson  v.  Dumas,  42  N.  H.  296 ;  Germond 
V.  Jones,  2  Hill,  569,  573;  Cooper  v.  Whitney,  3  Hill,  95;  Gomez  v  Tradesmen's  Bank, 
4  Saudf.  102  ;  Buffalo  Co.  v.  Lampson,  47  Barb.  533  ;  Terrett  v.  Crombie,  6  Lans.  82 ; 
Greene  v.  Greene,  1  Ohio,  244,  249 ;  Derush  v.  Brown,  8  Ohio,  412  ;  Firestone  v.  Fire- 
stone, 2  Ohio  St.  415  ;  Plantt  v.  Payne,  2  Bail.  319 ;  Thompson  v.  Perry,  2  Hill  Ch. 
204 ;  Gannaway  v.  Tarpley,  1  Coldw.  572  Accord. 

Nash  V.  Preston,  Cro.  Car.  191  (overruled);  Holbrook  v.  Finney,  4  Mass.  566 
{semble),  contra. 

See  also  Hiscock  v.  Jaycox,  12  N.  B.  R.  507 ;  Bopp  i'.  Fox,  63  111.  540 ;  Simpson 
f.  Leech,  86  111.  286  ;  McClelland  v.  McClelland,  65  Me.  500 ;  Dyer  v.  Clark,  5  Met.  562  ; 
Willet  V.  Brown,  65  Mo.  138;  Coster  y.  Clark,  3  Edw.  428;  Mowry  v.  Bradley,  11 
R.  I.  370;  George  v.  Cooper,  15  W.  Va.  666,  in  which  cases  it  was  decided  that  the 
■widow  of  a  partner  was  not  entitled  to  dower  in  land  held  by  husband  as  trustee  for 
the  partnership.  The  cases  of  Markham  v.  Merrett,  8  Miss.  437,  and  Smith  v.  Jack- 
son, 2  Edw.  28,  contra,  cannot  be  sustained. 

A  wife  has  no  homestead  interest  in  land  held  by  her  husband  as  trustee.  Osborn 
V  Strachan,  32  Kas.  52.  —  Ei>. 


Curtesy.  —  A  husband  is  not  entitled  to  curtesy  in  lands  of  which  his  wife  is 
seised  merely  as  trustee.  Bennet  v.  Davis,  2  P.  Wms.  318  ;  King  v.  Bushell,  121  111. 
656  ;  Chew  v.  Commissioners,  5  Rawle,  160.  See  also  Welch  t;.  Chandler,  13  B.  Mon- 
420.  — Ed. 

U.SE8,  —  The  wife  and  husband  of  a  feoffee  to  uses  were  entitled  to  dower  and  curtesy 
respectively.  Y.  B.  14  Hen.  VIII.  f.  4,  pi.  5;  .'supra,  p.  284  ;  Bro.  Ab.  Feff.  al  Uses, 
pi.  40;  Chuddleigh's  Case,  1  Rep.  122a;  Lewiu,  Trusts,  Introd. -3.  See  aho,  infra, 
378  n.  1,380  n.  1.  — Ed. 


SECT,  v.]  BOTTO-MLEY  V.   FAIRFAX.  375 


SECTION  V.  (continued). 
(6)'  Makkiage  of  Cestui  que  Thust.  —  Dowek. 

BOTTOMLEY  v.    LORD   FAIRFAX. 

In  Chancery,  1712. 

[Reported  in  Precedents  in  Chancery,  336] 

In  this  case  it  was  clearly  agreed  that  if  a  husband  before  marriage 
conveys  his  estate  to  trustees  and  their  heirs,  in  such  manner  as  to  put 
the  legal  estate  out  of  him,  though  the  trust  be  limited  to  him  and  his 
heirs,  that  of  this  trust  estate  the  wife,  after  his  death,  siiall  not  be 
endowed,  and  that  this  court  hath  never  yet  gone  so  far  as  to  allow 
her  dower  in  such  case.-^ 

1  Kent  V.  Reresby,  Tothill,  99  ,  Colt  v.  Colt,  Ch.  Rep.  254  ;  Radnor  v.  Rotheram, 
Prec.  Ch.  65;  Att'y-Gen.  v.  Scott,  Cas.  t.  Talb.  138;  Chapliu  r.  Cliaplin,  3  V.  Wins. 
229  ;  Shepherd  v.  Shepherd,  3  P.  Wms.  234,  n.  (D) ;  Reynolds  v.  Massing,  1  Atk.  604 
(cited) ;  Godwin  v.  Wiusmore,  2  Atk.  525  ;  Dixon  v.  Saville,  1  Bro.  C.  C.  326  ;  Curtis 
f.  Curtis,  2  Bro.  C.  C.  630  (semble) ;  Casborne  v.  Scarfe,  2  J.  &  W.  194;  Burgess  i-. 
Wheate,  1  Eden,  197 ;  Cornog  v.  Cornog,  3  Del.  Ch.  407 ;  liamiiu  v.  Hamlin,  19  Me. 
141  ;  Reed  v.  Whitney,  7  Gray,  533;  Lobdell  v.  Hayes,  4  All.  187;  Claiborne  v.  Hen- 
derson, 3  Hen.  &  M.  322  Accord.  The  widow  of  cestui  <jue  trust  of  a  copyhold  is  en- 
titled to  freebench.     Otway  v.  Hudson,  2  Vern.  583. 

Dower  in  trust  property  is  now  given  by  statute  in  most  jurisdictions.  The  old 
rule  still  prevails,  however,  in  a  few  states.  Cornog  v.  Cornog,  3  Del.  Ch.  407  ; 
Bush  r.  Busli,  5  Del.  Ch.  144  ;  Lobdell  v.  Hayes,  4  All.  187  ;  Hopkinson  v.  Dumas,  42 
N.  H.  296.  But  dower  in  an  equity  of  redemption  is  commonly  given  even  where  there 
is  no  dower  of  a  trust.  In  the  District  of  Coiumliia  the  widow  of  a  mortgagor  gets  no 
dower,  /t'e  Tliompson,  6  Mackey,  536.  In  New  York,  dower  in  an  e(iuitablo  interest 
is  allowed  only  wlicn  the  hnsl)and  retained  tlic  interest  at  liis  death.  AV  Ransom,  17 
Fed.  Rep.  331.  Kcnyon  n.  Kenyon  (K.  1.  1892),  24  Atl.  R.  787,  was  an  instance  of 
hardship.  The  husband  liad  an  equitable  life  estate  and  a  legal  remainder  iu  fee 
His  widow,  it  was  rigiitly  decided,  got  notiiing. 


376  D'aRCY  v.   BLAKE.  [CHAP.  III. 


D'ARCY  V.   BLAKE. 

In  Ireland,  in  Cuancery,  before  Lord  Redesdale,  C,  March  9, 

1805. 

[Reported  in  2  Sclioules  ^  Lejroy,  387.] 

In  this  case  it  btul  been  referred  to  the  Master  to  inquire  and  report 
whether  the  defendant  Margaret  Bhike  was  entitled  to  dower  out  of  all 
or  any,  and  which  of  tlie  estates  of  her  late  husband,  if  not  bound  by 
a  certain  deed  in  the  plaintiff's  bill  mentioned.  It  appeared  that  the 
estates  in  question  were  let  at  the  time  of  the  marriage  upon  leases  for 
lives,  which  continued  during  the  coverture.  The  Master  reported 
that  the  defendant  was  not  entitled  to  dower,  to  which  report  the  de- 
fendant excepted. 

Mr.  Saurin,  Mr.  Burston,  Mr.  Williams^  and  Mr.  Lynch,  for  the 
exception.^ 

The  Attorney -General^  Mr.  Burton.,  and  Mr.  Daniel.,  against  the 
exception. 

Lord  Chancellor.  The  general  principle  on  which  courts  of  equity 
have  proceeded  in  cases  of  dower  is,  that  dower  is  to  be  considered  as 
a  mere  legal  right ;  and  that  equity  ought  not  to  create  the  riglit  where 
it  does  not  subsist  at  law  ;  that  therefore  there  can  be  no  dower  of  an 
equity  of  redemption  reserved  upon  a  mortgage  in  fee,  though  there 
may  of  an  equity  of  redemption  upon  a  mortgage  for  a  term  of  years, 
because  in  that  case  the  law  gives  dower  subject  to  the  term.  A  court 
of  equity  will  assist  a  widow  by  putting  a  term  out  of  her  way,  where 
third  persons  are  not  interested.^  But  against  a  purchaser,  a  court  of 
equity  will  not  give  that  assistance,  as  in  Lady  Radnor  v.  Vandebendy.^ 
The  dilKculty  in  which  the  courts  of  equity  have  been  involved,  with 
respect  to  dower,  I  apprehend,  originally  arose  thus :  They  had  as- 
sumed as  a  principle  in  acting  upon  trusts,  to  follow  the  law;  and 
according  to  this  principle,  they  ought,  in  all  cases  where  rights  at- 
tached on  legal  estates,  to  have  attached  the  same  rights  upon  trusts ; 
and  consequently  to  have  given  dower  of  an  equitable  estate.  It  was 
found,  however,  that  in  cases  of  dower  this  principle,  if  pursued  to  the 
utmost,  would  affect  the  titles  to  a  large  proportion  of  the  estates  in 
the  country;  for  that  parties  had  been  acting  on  the  footing  of  dower, 
upon  a  contrary  principle,  and  had  supposed  that  by  the  creation  of  a 
trust  the  right  of  dower  would  be  prevented  from  attaching.  Many 
persons  had  purchased  under  this  idea;  and  the  country  would  have 
been  thrown  into  the  utmost  confusion  if  courts  of  equity  had  followed 

1  The  arguments  of  counsel  are  omitted.  —  Ed. 

2  Kadnor  v.  Vandebendy,  Prec.  Ch.  6.5 ;  Dudley  v.  Dudley,  Prec.  Ch.  241  Accord. 
—  Ed. 

3  Prec.  Ch.  65,  by  the  name  of  Lady  Radnor  v.  Rotheram,  Show.  Pari.  Cas.  96. 


SECT,  v.]  D'aRCY   V.   BLAKE.  377 

their  general  rule  with  respect  to  trusts  in  the  cases  of  dower.  But 
the  same  objectiou  did  not  apply  to  tenancy  by  the  curtesy ;  for  no 
person  would  purchase  an  estate  subject  to  tenancy  by  the  curtesy, 
without  the  concurrence  of  the  person  in  wliom  that  right  was  vested. 
This  I  take  to  be  the  true  reason  of  the  distinction  between  dower  and 
tenancy  by  the  curtesy.  It  was  necessary  for  the  security  of  pur- 
chasers, of  mortgagees,  and  of  other  persons  taking  the  legal  estates, 
to  depart  from  the  general  principle  in  case  of  dower ;  but  it  was  not 
necessary  in  the  case  of  tenancy  by  the  curtesy.  Pending  the  cover- 
ture, a  woman  could  not  alien  without  her  husband  ;  and  therefore 
nothing  she  could  do  could  be  understood  by  a  purchaser  to  affect  his 
interest :  but  where  the  husband  was  seised  or  entitled  in  his  own  right, 
he  had  full  power  of  disposing,  except  so  far  as  dower  might  attach; 
and  the  general  opinion  having  long  been  that  dower  was  a  mere  legal 
right,  and  that  as  the  existence  of  a  trust  estate  previously  created 
prevented  the  right  of  dower  attaching  at  law,  it  would  also  prevent 
the  propert}'  from  all  claim  of  dower  in  equity;  and  many  titles  depend- 
ing on  this  opinion,  it  was  found  that  it  would  be  mischievous  in  this 
instance  to  the  general  principle  that  equity  should  follow  the  law;  and 
it  has  been  so  long  and  so  clearly  settled  that  a  woman  should  not  have 
dower  in  equity  who  is  not  entitled  at  law,  that  it  would  be  shaking 
everything  to  attempt  to  disturb  the  rule.  In  point  of  remedy,  a  woman 
claiming  dower  may  be  assisted  in  equity  :  a  court  of  equity  will  put 
out  of  her  way  a  terra  which  prevents  her  obtaining  possession  at  law; 
but  that  is  only  as  against  an  heir  or  volunteer,  not  a  purchaser,  the 
heir  or  volunteer  being  considei'ed  as  claiming  in  no  better  right 
than  she  does.  "When,  therefore,  any  question  of  dower  has  arisen 
in  courts  of  equity,  and  doubts  have  been  entertained  of  the  title  to 
dower,  the  constant  practice  in  England  has  been  to  put  the  widow  to 
bring  her  writ  of  dower  at  law.  The  courts  will  assist  her  in  trying 
her  right,  and  enjoying  the  benefit  of  it,  if  determined  at  law  in  her 
favor,  by  giving  her  a  discovery  of  deeds,  by  ascertaiuing  metes  and 
bounds  ;  and  they  do  not  require  her  to  execute  the  writ  with  all  the 
formalities  necessary  at  law;  and  the  right  being  acertained  by  judg- 
ment at  law,  will  give  her  possession  according  to  licr  right ;  Ijut 
still  they  require  that  the  (picstion  of  her  title  to  dower,  if  subject  to 
doubt,  siiould  be  determined  at  law.  What  was  thrown  out  by  Sir 
Joseph  Jekyll  in  IJanks  v.  Sutton,'  has  been  long  overruled.'-  The  rule 
of  courts  of  equity,  so  far  as  it  excludes  a  widow  from  dower  of  an 
equitable  estate  against  an  heir  or  volunteer,  goes  perhaps  beyond  the 
reason  of  the  rule.  Hut  I  have  ciillcd  this  subject  to  my  recollection  .-i 
good  deal,  l)y  looking  into  the  authorities  since  this  case  was  first  men- 
tioned ;  and  the  decisions  to  the  full  extent  are  so  old,  so  strong,  and 
so  numerous,  so  generally  adopted  in  every  book  on  the  subject,  :iud 
so  considered  as  settled  law,  that  it  would  be  very  wrong  to  attempt  at 

1  2  r.  Wms.  700.  ,         «  See  Cox's  note  (1 ),  2  1".  Wnw.  "19. 


378  D'AKCY   v.   BLAKE.  [CHAP.  III. 

this  time  to  alter  them.  Nor  do  I  thiuk  that  the  doubts  which  have 
beeu  suggested  with  respect  to  au  equitable  estate  cau  be  fairly  raised 
iu  this  case,  where  the  claim  is  of  dower  of  estates  leased  for  lives 
before  the  marriage,  aud  coutiuuing  subject  to  such  leases,  at  the 
death  of  the  husband.  Of  those  parts  of  his  estate  the  late  husband 
of  the  cjefendaut  INIargaret  Blake  was  not  so  seised  as  to  entitle  her  to 
dower  at  law  ;  aud  if  equity  were  strictly  to  follow  the  law,  she  could 
have  uo  claim  iu  equity  for  dower  of  those  estates.  He  had  not  such 
seisin  as  to  entitle  her  to  dower;  and  the  exception  must  be  therefore 
overruled.* 

1  In  Att'y-Gen.  v.  Scott,  Cas.  t.  Talb.  138,  Lord  Talbot  said,  p.  139:  "No  dower 
was  of  a  use  before  the  statute  (a),  as  appears  from  Vernon's  Case,  4  Co.  1.  Aud  then 
how  cau  she  be  dowable  of  a  trust  after  the  statute,  since  no  difference  cau  be  assigned 
between  a  trust  now  and  a  use  before  the  statute  1  And  courts  of  equity  must  follow 
the  same  rules  uow  as  to  trusts,  as  prevailed  before  the  statute  as  to  uses.  How  the 
difference  now  received,  between  tenant  by  the  curtesy  and  tenant  in  dower,  ever 
came  to  be  established,  I  cannot  tell ;  but  that  it  is  established  is  certain."  —  Ed. 

(a)  Y.  B.  13  H.  VII.  7-3;  Crumwel  v.  Andros,  2  And.  69,  75  {semble) ;  Vernon's 
Case,  4  Rep.  1  6 ;  Doct.  &  Stud.  Dial.  II.  c.  22 ;  Chaplin  v.  Chaplin,  3  P.  Wms.  229, 
234 ;  Preamble  to  Statute  of  Uses,  27  Hen.  VIII.  c.  10  Accord.  —  Ed. 


SECT,  v.]  WATTS   V.   BALL.  379 


SECTION  V.  {continued). 

(62)  ^Iakkiage  of  Cestdi  que  Trust.  —  Rights  of  her  Husband  during 

Coverture. 

SWEET  APPLE  v.  BINDON. 
In  Chaxcery,  before  Sir  Nathan  Wright,  K.,  February  9,  1705. 

[Reported  in  2  Vernon,  536.] 

W.  B.  devised  £300  to  her  daughter  Mary,  to  be  laid  out  by  her 
executrix  in  lauds,  aud  settled  to  the  only  use  of  her  daughter  Mary 
and  her  children  j  and  if  she  died  without  issue,  the  lauds  to  be  equally 
divided  between  her  brothers  and  sisters  then  living.  The  plaintiff 
married  Mary  the  legatee,  and  had  issue  by  her  ;  but  she  and  her  child 
being  both  dead,  and  the  money  not  laid  out  in  laud,  the  bill  was,  that 
the  plaintiff  might  either  have  the  money  laid  out  in  lands,  and  settled 
on  hun  for  life,  as  being  tenant  by  the  curtesy,  or  in  lieu  of  the  profits 
of  the  lands  might  have  the  interest  of  the  money  during  his  life. 

Pel-  Cur.  If  it  had  been  an  immediate  devise  of  land,  Mary  the 
daughter  would  have  been,  by  the  words  in  the  will,  tenant  in  tail,  and 
consequently  the  husband  would  have  been  tenant  by  the  curtesy;  and 
in  the  case  of  a  voluntary  devise  the  court  must  take  it  as  they  found 
it,  and  not  lessen  the  estate  or  benefit  of  the  legatee  ;  although  upon 
the  like  words  in  marriage-articles  it  might  be  otherwise,  where  it  ap- 
peared the  estate  was  intended  to  be  preserved  for  the  benefit  of  the 
issue  ;  and  therefore  decreed  the  money  to  be  considered  as  lands,  and 
the  plaintiff  to  the  interest  or  proceed  thereof,  for  his  life,  as  tenant  by 
the  curtesy.' 


WATTS  AND  Another  v.  BALL  and  Another. 
In  Chancery,  before  Lord  Cowper,  C,  Hilary  Term,  1708. 

[Reported  in  1  Peere  Williams,  108.] 

The  case  in  effect  was  :  One  seised  of  lands  in  fee  hatl  two  daughters, 
and  devised  his  lands  to  trustees  in  fee,  in  trust  to  pay  his  dehts,  :ind 
to  convey  the  surplus  to  his  daughters  equally. 

The  younger  daughter  married  and  died,  leaving  an  infant  son  and 
her  husband  surviving. 

The  eldest  daught(!r  brought  a  bill  for  a  partition  ;  :uul  tiic  only 
question  was,  whether  the  husband  of  the  younger  daughter  should 
have  an  estate  for  life  conveyed  to  him,  as  tenant  by  the  curtesy? 

J  Cunningham  v.  Moody,  1  Ves.  174;  Dodson  v.  Hay,  3  Bro.  C.  C.  405  Accord.-" 
Ed. 


«o 


so  WATTS   i:   BALL.  [CHAP.  IH. 

The  husband  in  his  ausvrer  had  sworu  that  he  married  the  younger 
(laughter  upon  a  presumption  that  she  was  seised  in  fee  of  a  legal 
estate  in  the  moiety ;  that  at  the  time  of  the  marriage  she  was  in  the 
actual  receipt  of  the  profits  of  such  moiety  ;  aud  it  was  admitted  that 
this  trust  was  not  discovered  uutil  after  the  death  of  the  younger 
daughter,  nor  until  it  was  agreed  that  a  partition  should  be  made. 

Decreed  by  Lord  Chancellor,  that  trust  estates  were  to  be  gov- 
erned by  the  same  rules,  and  were  within  the  same  reason,  as  legal 
estates  ;  aud  as  the  husband  should  have  been  tenant  by  the  curtesy, 
had  it  been  a  legal  estate,  so  should  he  be  of  this  trust  estate ;  and  if 
there  were  not  the  same  rules  of  property  in  all  courts,  all  things 
would  be,  as  it  were,  at  sea,,  and  under  the  greatest  uncertainty. 

His  Lordship  added,  that  this  being  a  case  of  some  difficulty,  he 
could  have  wished  it  had  uot  come  before  him  as  a  cause  by  consent ; 
but  his  opinion  was,  that  the  husband  ought  to  be  tenant  by  the 
curtesy,  and  the  rather,  because  it  appeared  that  he  upon  his  marriage 
did  conceive  and  presume  his  wife  to  be  seised  of  a  legal  estate  in  the 
moiety,  and  had  reason  to  think  so,  she  being  in  possession  thereof. 

"Wherefore  it  was  decreed  that  an  estate  for  life  in  a  moiety  in  sever- 
alty should  be  conveyed  by  the  trustees  to  the  husband,  with  remainder 
in  fee  to  his  son. 

In  this  cause,  Mr.  How  (who  was  for  the  husband)  cited  the  case  of 
Sweetapple  v.  Bindon,  where  money  was  devised  to  be  laid  out,  for 
the  benefit  of  a  feme  sole  in  the  purchase  of  lands  in  fee ;  the  feme 
married,  and  had  issue,  and  died,  the  husband  surviving  ;  and  decreed 
in  equity  that  though  the  money  was  not  invested  in  a  purchase  during 
the  life  of  the  wife,  yet  in  regard,  in  this  case,  if  it  had  been  so  laid 
out  the  husband  would  have  been  tenant  by  the  curtesy,  and  that  this 
was  as  land  in  equity,  therefore  the  husband  was  equally  entitled.^ 

1  Chaplin  v.  Chaplin,  3  P.  Wms,  234  (semhle) ;  Att'y-Gen.  v.  Scott,  Cas.  T.  Talb. 
139  (semble)  ;  Casborne  v.  Scarfe,  1  Atk.  603;  Parker  v.  Carter,  4  ILare,  400;  Davis  v. 
Mason,  1  Pet.  503,  508;  Robison  v.  Codman,  1  Sumn.  121,  128;  Philips  v.  Philips,  2 
Duv.  549;  Rawlings  v.  Adams,  7  Md.  26,  54;  Houghton  v.  Hapgood,  13  Pick.  154; 
Gardner  v.  Hooper,  3  Gray,  398;  Alexander  v.  Warrance,  17  Mo.  228  ;  Baker  v.  Nail, 
59  Mo.  268 ;  Tremmel  v.  Kleiboldt,  6  Mo.  Ap.  549 ;  Senthill  v.  Robeson,  2  Jones  Eq. 
510  (semlle);  Lowry  t\  Steele,  4  Ohio,  170;  Shoemaker  v.  Walker,  2  S.  &  R.  554; 
Chew  V.  Commissioners,  3  Rawle,  160;  Dubs  v.  Dubs,  31  Pa.  154;  Baker  v.  Heiskell, 
1  Cold.  641  ;  Norman  v.  Cunningham,  5  Grat.  63  Accord. 

A  husband  of  cestui  que  use  was  not  entitled  to  curtesy.  Brooke  Abr.  Feoff,  al 
Uses,  pi.  40;  Chudleigh's  Case,  1  Rep.  122  a;  Gilbert  Uses,  11,  171  ;  Lewin  Trusts, 
Introd.  (7th  ed.)  3. —Ed. 


SECT,  v.]  APPLETON   V.   ROWLEY.  381 


APPLETON  V.   ROWLEY. 
In  Chaxcery,  before  Sir  R.  Malins,  V.  C,  March  10,  1869. 

[Reported  in  Law   Reports,  8  Equity,  139  ] 

This  case  came  on  upon  further  consideration. 

Samuel  Duffiekl,  by  his  will,  dated  in  March,  1843,  devised  and  be- 
queathed all  his  real  and  personal  estate  to  his  wife  Alice  DuHield  and 
three  other  persons,  their  heirs,  executors,  administrators,  and  assigns, 
upon  trust  to  permit  his  wife  to  receive  the  clear  rents,  income,  and 
profits  arising  from  his  landed  estates  and  funded  property  for  her  life, 
and  after  her  decease  upon  trust  to  sell  the  sixteen  freehold  houses 
therein  designated,  and  invest  the  produce  in  government  securities, 
and  he  charged  the  said  sixteen  houses  or  the  produce  upon  the  sale 
thereof  with  the  payment  of  certain  legacies,  and  the  remainder  or 
overplus  which  might  arise  from  the  sale  of  such  sixteen  houses  he  gave 
and  bequeathed  in  equal  moieties  between  Sarah  Gaywood  and  Alice 
Key,  as  tenants  in  common,  and  their  respective  heirs  or  representa- 
tives. And  upon  further  trust  as  to  five  other  freehold  houses  after  the 
death  of  his  wife  to  stand  possessed  thereof  unto  and  to  the  use  of  Alice 
Key,  her  heirs  and  assigns  for  ever,  free  from  the  control,  intermed- 
dling, debts,  or  engagements  of  any  husband  with  whom  she  might 
intermarry,  and  that  her  receipt  alone  should  be  a  full  and  eflfectual 
discharge  to  the  trustees  for  the  time  being  for  all  purposes  and  upon 
all  occasions.  But  in  the  event  of  her  dying  without  having  any  cliild 
or  children,  then  to  stand  possessed  of  the  said  five  houses  unto  and  to 
the  use  of  three  persons  therein  named,  their  heirs  and  assigns,  for 
ever,  as  tenants  in  common.  And  the  residue  of  his  real  and  persojial 
estate  the  testator  gave  upon  trust  for  his, wife,  her  heirs,  executors, 
administrators,  and  assigns  absolutely,  and  to  be  conveyed  and  dis- 
posed of  as  she  might  think  fit  or  direct. 

Alice  Key,  a  married  woman,  died  after  the  institution  of  the  suit, 
and  there  was  one  child  of  her  marriage. 

The  first'  question  argued  was  whether  the  husl)and  of  Alice  Key 
was  entitled  as  tenant  by  the  curtesy  to  the  five  freehold  houses  devised 
to  trustees  upon  trust  for  Alice  Key,  her  heirs  and  assigns,  for  ever, 
for  her  separate  use. 

Mr.  CharhH  Hall,  for  the  phiinlilT,  the  liusband  of  Alice  Key. 

Mr.  Lahirj,  for  persons  in  tiie  same  interest. 

Mr.  Baznlfjette,  Q.  C,  for  the  infant,  claimed  adversely  to  the 
curtesy. 

Sir  R.  Malins,  V.  C.  The  rules  of  this  court  are  clear,  that  tlie 
husband  is  entitled  to  curtesy  whenever  llio  wife  is,  at  law  or  in  equity, 

'  Only  80  much  of  the  case  is  given  ae  relates  to  this  question  j  the  arguments  of 
counsel  are  also  omitted.  —  Ko 


382  APPLETON   V.   ROWLEY.  [CHAP.  III. 

seised  of  an  estate  of  inheritance.  This  question  arises  in  respeot  of 
tiie  husband  of  Alice  Key,  who  is  said  to  be  entitled  to  curtesy  out  of 
the  five  freehold  bouses  devised  to  trustees  to  stand  possessed  thereof 
unto  and  to  the  use  of  Alice  Key,  her  heirs  and  assigns  for  ever,  for 
her  sole  and  separate  use.  The  devise,  therefore,  is  to  her  in  fee-sim- 
vyle,  with  a  direction  that  the  property  shall  be  for  her  separate  use. 

The  effect  of  the  devise  is  to  give  her  power  to  alienate  the  property 
ivithout  the  concurrence  of  her  husband.  If  she  had  conveyed  it  by 
deed,  or  devised  it  by  will,  the  trustees  would  have  been  bound  to  con- 
vey the  legal  estate  to  any  person  taking  under  such  deed  or  will.  She 
had  the  whole  equitable  estate  in  fee-simple,  and  it  being  clear  that 
curtesy  attaches  wherever  the  wife  is  entitled  to  a  fee,  why  should  not 
ihe  husband  have  curtesy  in  this  property? 

The  separate  use  clause  is  for  the  protection  of  the  wife,  and  would 
have  entitled  her  as  against  her  husband  to  make  an  alienation.  She 
has  died  without  making  any  disposition  of  the  property,  and  was  seised 
tjf  the  equitable  estate  in  possession.  My  opinion  is,  that  the  estate  is 
6,ubject  to  curtesy.  It  would  be  contrary  to  every  principle  that  a 
clause  introduced  for  the  benefit  and  protection  of  the  wife  should  pre- 
feut  the  husband  from  having  his  right  to  curtesy. 

There  is  no  doubt  that  the  authorities  are  conflicting.  In  Roberts  v. 
J)ixwell,^  the  testator  directed  his  trustees  to  convey  one-fourth  of  his 
property  to  the  use  of  his  daughter  for  life  for  her  separate  use,  and 
jifter  her  decease  in  trust  for  the  heirs  of  her  body.  Lord  Hardwicke 
expressed  himself  thus  :  "  The  next  question  will  be,  whether  the  de- 
vise to  the  wife  for  her  separate  use  will  bar  the  husband  of  his  curtesy. 
I  am  of  opinion  it  will  not,  because  here  is  a  sort  of  a  seisin  in  the  wife. 
My  Lord  Coke  says,  that  to  make  a  tenancy  by  the  curtesy  there  ought 
to  be  a  right  in  the  husband  inchoate  in  the  life  of  the  wife ;  but  he 
does  not  say  that  he  should  be  seised  of  the  rents  and  profits.  There- 
fore, I  think  if  this  had  been  an  estate-tail,  he  would  have  been  entitled 
to  be  tenant  by  the  curtesy,  notwithstanding  this  court,  by  their  author- 
ity, might  have  prevented  the  husband  from  intermeddling  with  the 
rents  and  profits  during  tlie  life  of  the  wife.  But,  upon  the  whole,  I 
am  of  opinion  the  wife  could  not  take  an  estate  in  tail,  but  took  an 
estate  for  life  o*nly."  And,  on  the  ground  that  the  husband  was  abso- 
lutely excluded  from  all  benefit  in  the  estate,  either  in  the  life  of  the 
wife  or  after  her  decease,  Lord  Hardwicke  held  that  the  husband  was 
excluded  from  the  curtesy.  Then  there  is  the  contrary  opinion,  ex- 
pressed by  Lord  Hardwicke  in  Hearle  v.  Greenbank,^  where  the  rents 
of  the  estate  were  to  be  applied  to  the  separate  use  of  the  wife,  and  the 
trustees,  who  had  the  fee  in  all  the  real  estate,  were  to  permit  the  wife 
to  dispose  of  it.  There  Lord  Hardwicke  decided  that  the  husband 
could  not  be  tenant  by  the  curtesy,  because  the  whole  legal  estate  of 
inheritance  was  in  the  trustees. 

1  1  Atk  607,  609.  2  3  Atk.  695,  716. 


SECT,  v.]  APPLETON    V.    ROWLEY.  383 

The  true  criterion  is,  whether  the  wife  is  seised  of  an  equitable  estate 
of  inheritance.  In  Follett  v.  Tyrer,^  the  property  was  conveyed  to 
trustees  in  trust  for  the  separate  use  of  the  wife  for  life,  with  remainder 
as  she  should  appoint,  and  in  default  of  appointment,  to  her  right  heirs 
for  ever.  The  wife  died  without  exercising  the  power,  and  it  was  held 
that  her  husband  was  entitled  to  the  curtesy.  Then  there  is  the  recent 
case  of  Moore  v.  Webster,^  where  the  real  estate  was  limited  to  the 
separate  use  of  the  wife,  and  to  be  assigned  and  disposed  of  as  she 
might  think  fit  by  deed  or  will ;  and  Vice-Chancellor  Stuart  held  that 
the  hus])and  was  not  entitled  to  curtesy,  on  the  ground  that  he  was 
totally  excluded  from  the  whole  marital  interest.  I  am  unable  to  con- 
cur in  that  decision,  for  there  the  whole  equitable  fee  was  given  to  the 
wife. 

I  think,  from  a  review  of  all  the  cases,  and  upon  the  sound  principles 
of  law,  that  wherever  a  wife  is  seised  of  an  estate  in  fee-simple  or  fee- 
tail  in  possession,  whether  legal  or  equitable,  the  husband  cannot  be 
excluded  from  the  curtesy  ;  he  will,  therefore,  in  this  case  be  entitled  to 
this  estate  for  life  by  the  curtesy.* 

1  U  Sim.  125.  2  Law  Rep.  3  Eq.  267. 

8  Roberts  v.  Dixwell,  1  Atk.  609  (semble) ;  Morgan  v.  Morgan,  5  Mad.  408  ;  Follett 
V.  Tyrer,  14  Sim.  125;  Cooper  v.  McDonald,  7  Ch.  D.  288  {semble) ;  Eager  v.  Furni- 
vall,"  17  Ch.  D.  115  ;  Hope  v.  Hope,  '92,  2  Cb.  336;  Grimball  v.  Patton,  70  Ala.  626 
(semble);  Payne  v.  Payne,  11  B.  Mon.  138;  Tremmel  v.  Kleiboldt,  76  Mo.  255;  Mul- 
lany  v.  Mullauy,  3  Green,  Cb.  16 ;  Cusbing  v.  Blake,  29  N.  J.  Eq.  399,  30  N.  J.  Eq.  689, 
696 ;  Clark  i;.  Clark,  24  Barb.  581  ;  Ege  v.  Medlar,  82  Pa.  86 ;  Tilliugliast  v.  Cogge- 
shall,  7  R.  I.  383 ;  Harvey  v.  Heiskell,  1  Coldw.  641  Accord. 

Hearle  V.  Greenbank,  3  Atk.  715  (overruled);  Moore  v.  Webster,  L.  R.  3  Eq.  267 
(overruled),  contra. 

An  alienation  of  her  inheritance  by  the  wife,  either  by  deeil  or  will,  deprives  the  hus- 
band of  his  curtesy.  Cooper  v.  McDonald,  7  Cb.  D  288 ;  Sturnmr  i-  Sedgwick,  24 
Ch  D  597 ;  Pool  v.  Blakie,  53  111.  495  ;  Steward  v.  Ro.ss,  50  Miss.  776 ;  Cliapuiau  v. 
Price,  83  Va.  392.     But  see  contra  Soltan  v.  Soltan,  93  Mo.  307. 

It  has  been  maintained  by  certain  anthurities  that  an  express  intention  l>y  the 
creator  of  the  separate  use  to  exclude  the  hu.^iband  from  curtesy  is  suHicient  to  bar 
his  claim  Moigan  v.  Morgan,  5  .Mad.  408  (sembli')  ;  l{aiitenliusch  v.  Donahlson,  (Ky. 
1892)  18  S  W  H.  636  ;  Stokes  v.  McKibbin,  13  Pa.  267  {siniblc)  ;  Kiglcr  ;•.  Cloud,  14 
Pa.  361.  Sec  also  Dugger  v.  Dugger,  84  Va.  130.  But  this  view  is  fully  met  by  tho 
following  obriorvatious  of  Mr.  l.c\vin  in  liis  Treatise  on  the  Law  of  Trusts  (9lb  ed), 
829 :  "  It  was  ob.servcd  by  Sir  Jolm  Leacii  tliat  at  law  tiie  husband  could  not  be  ex- 
clnded  from  the  enjoyment  of  property  given  to  or  settled  npon  the  wife,  but  in  equity 
he  might ;  and  that  not  only  jiartially,  a,s  by  a  dir('ctii>n  t<>  jiav  the  rents  ;iiid  |iri>fits  to 
the  sepanile  u.se  of  his  wife  during  coverture,  but  wlinlly  by  a  direction  th.it  ujion  the 
death  of  the  wife  tho  inheritance  should  descend  to  tho  heir  of  tho  wife,  and  that 
tlie  husband  slmuld  not  be  entitled  to  bn  tenant  of  tlio  curtesy:  Morgan  v.  Morgan, 
5  .Mad.  411  ;  l>ut  tin's  <loctriiie  may  admit  of  (|nestion,  as  there  appears  no  rea.'^on  wiiy 
a  person  should  bo  able  to  exempt  equitable  any  more  than  legal  estates  from  tho 
ordinary  imidents  of  projierty.  A  declanition,  for  in.Ktance,  by  a  settU)r,  that  a  trust, 
should  be  inalienable  or  not  avaiialde  to  creditors  would  be  absolutely  void.  In  tho 
case  of  Bonnet  v.  Davis,  2  P.  Wms  310.  which  is  cited  by  Sir  .J.  Leacli  for  bis  posi- 
tion, the  question  discussed  was  nrtt  whether  curtesy  attached  on  an  equitable  estate, 
but  whether  an  equitable  estate  arose.  A  testator  had  devi.sed  lan<ls  to  his  daughter, 
Wie  wife  of  Bennet,  for  her  separate  use,  exclusive  of  her  husband,  to  hold  the  same 


3S4  APPLETON   V.   ROWLEY.  [CHAP.  III. 

to  her  ami  lier  heirs,  aud  that  her  husband  sliould  not  be  tenant  by  the  curtesy,  nor 
have  the  hinds  for  his  life  iu  case  he  survived,  but  that  they  should  ujiou  liis  wife's 
death  go  to  iicr  lieirs.  It  was  coiiteuded  that  the  wife  could  not  be  a  trustee  for  her- 
self, aud  tliat  the  husbaud  ct)uld  not  bo  a  tru.stoc  for  the  wife,  they  both  being  one 
person,  aud  that,  consequently,  ;vs  there  was  no  trustee,  the  husband  was  entitled  to 
tiie  estate  beneficially.  But  the  court  held  that  the  husband  was  a  trustee  for  tlie 
wife,  and  observed  :  '  Thougli  the  husband  might  be  tenant  by  the  curtesy  (viz.  of  tiie 
legal  estate),  yet  he  should  be  but  a  trustee  for  the  heirs  of  the  wife.'  Tiie  remark 
certainly  implies  that  on  the  death  of  the  wife  the  husband  would  not  be  tenant  by  tlie 
curtesy  of  tlie  equitable  estate;  but  that  question  had  not  been  adverted  to  at  the  bar, 
and  apparently,  from  the  context,  was  not  under  the  consideration  of  the  court.  Even 
assuming  the  remark  to  have  been  made  advisedly,  the  view  of  the  court  may  have 
been  that  the  curtesy  of  the  husband  was  excluded  on  the  ground  now  overruled,  viz. : 
that  the  trust  being  not  simply  for  the  wife  and  her  heirs,  but  during  the  coverture  for 
the  separate  use  of  the  wife,  aud  after  her  death  for  her  heirs,  there  was  not  a  suffi- 
cient seisin  as  regarded  the  husband  for  the  curtesy  to  attach  upon.  See  Hearle  v. 
Greeubauk,  3  Atk.  715,  716  ;  Morgan  v.  Morgan,  5  Mad,  408."  —  Ed. 


SECT,  v.]  SIR  EDWARD   TURNER'S   CASE.  385 


SECTION   V.  {coiitinued). 
[b  8]  Marriage  of  Cestui  que  Trust.    Rights  of  Husband  during  Coverture. 

WITHAM'S   CASE. 

In  Chancery,  Easter  Term,  1590. 

[Reported  in  Fourth  Institute  87.] 

"Witham's  Case  in  the  chancery  was,  that  a  term  for  years  was 
granted  to  the  use  of  a  feme  sole^  she  took  husband  and  died  ;  whether 
the  husband  should  have  the  use,  or  the  administrators  of  the  feme,  was 
referred  to  the  judges  ;  and  by  them  it  is  resolved,  that  the  administrators 
should  have  it,  and  not  the  husband,  because  that  this  trust  of  a  feme 
was  a  thing  in  privity,  and  in  nature  of  an  action,  for  which  no  remedy 
was  but  by  writ  of  subpoena.  And  so  it  was  resolved  by  the  justices  in 
Waterhouse's  Case,  Hil.  8  [38?]^  Eliz.  Eborum,  for  the  trust  run- 
neth in  privity  in  this  case,  and  a  husband  shoujd  not  be  tenant  by  the 
curtesie  of  an  use,  nor  the  lord  of  the  villain  should  have  it  at  common 
law.'^ 


SIR  EDWARD  TURNER'S   CASE. 
In  Chancery,  in  the  House  of  Lords,  Trinity  Term,  1681. 

[Reported  in  I   Vernon,  7.*] 

Memorandum  ;  that  about  Michaelmas  last  it  was  adjudged  in  an 
appeal  in  the  House  of  Lords,  in  the  case  of  Sir  Edward  Turner,  that 
a  term  being  assigned  in  trust  for  a.  feme  by  her  former  husband,  and 
she  afterwards  intermarrying  with  tlie  late  Lord  Chief  IJaron  Turner, 
who  aliened  the  term,  that  the  same  was  well  passed  away,  and  that 
the  husband  might  dispose  thereof  ;  and  my  Lord  Chancellor's  decree 
was  thereupon  reversed.*     But  it  was  agreed,  that  where  a  term  is  as- 

»  Wytham  i*.  Waterhonso  (II.  38  Eliz),  Cro.  E!.  466,  Popham,  106,  9.  c.  —  En. 

*  Co.  Litt.  351,  a;  Anon.  Jenk.  6  Cent.  245  pi.  30,  Dy.  369  a,  8.  c. ;  Dcuio's  Case, 
Lane,  113,  cited  ;  Hunt  r.  Bakf^r,  Frecm  Cli.  62  Acrmd. 

IJut  in  Hex  v.  Ilollaml  (1047).  Alcyn,  l.")  Witham's  ra«o  being  citod,  "  Rollo,.I.,i«Aitl 
that  it  hath  been  Hinco  reaolved  that  tlio  liUHband  nliall  liavo  it  in  tlii.s  ca^c."  See 
in  agreement  with  the  opinion  of  Hollo  J.,  Re  Boliainy,  25  Ch.  I).  020,  Archer  i>. 
Lavender,  Ir.  R.  9  Eq.  220  ;  I  I'rcston,  Abst.  343  ;  Lowiu,  Trusts  (9th  ed.),  842.  —  Ed. 

"  4  Hare,  3,  n.  (/<),  s.  c.  —  Et». 

♦  Wikcs'a  Case,  Lane,  54  ,  1  Roll.  Abr.  343,  h.  c  ;  Bullock  v  Knight,  1  Ch.  Ca.  200  , 
Pitt  V.  Hunt,  1  Vern.  18  ,  Sanders  v.  Pago,  3  Ch  Hop.  223  ;  Packer  v.  Wyndham,  Prec. 
Ch.  418,  419;  Roupe  v.  Atkinson,  Bunb.  102;  Jewsou  v.  Moulton,  2  Atk  417,421; 

25 


386  ELWIN   V.    WILLIAMS.  [CHAP.  IIL 

signed  in  trust  for  a  feme  by  the  privit}'  and  consent  of  her  husband, 
there  without  doubt  the  husband  cauuot  intermeddle  or  dispose  of  it. 


ELWIN   V.   WILLIAMS. 

In  Chancery,  before  Sir  L.   Shadwell,  January  23,  24,  April, 

1843. 

[Reported  in  13  Simon,  309  ] 

Under  the  will  of  F.  Potter,  who  died  in  1799,  one  moiety  of  his 
residuary  personal  estate,  consisting  of  stock  in  the  funds  &c.,  was 
vested  in  trustees,  in  trust  for  his  daughter  Sarah,  the  wife  of  Robert 
Ellison,  for  her  separate  use,  for  her  life,  and,  after  her  death,  in  trust 
for  Sarah,  her  daughter,  absolutely,  but  subject  to  the  payment  of 
one  half  of  the  income  to  Robert  Ellison  for  his  life,  if  he  survived 
his  wife. 

In  October  1812  an  indenture  (being  articles  of  agreement  in  contem- 
plation of  the  marriage  of  Sarah,  the  daughter,  then  an  infant  of  the 
age  of  nineteen^  with  Ralph  Nicholson)  was  made  between  Nicholson 
of  the  first  part,  Ellison  and  wife  of  the  second  part,  Sarah,  the  daugh- 
ter, of  the  third  part,  and  certain  trustees  of  the  fourth  part,  whereby 
it  was  agreed  between  the  parties,  and  Sarah,  the  daughter,  for  herself, 

Incledon  v.  Northcote,  3  Atk.  430,  435  ;  Macaulay  v.  Phillips,  4  Ves.  15,  19  ;  Franco  v. 
Franco,  4  Ves.  515,  528;  Mitford  v.  Mitford,  9  Ves.  87,  98  ;  Donne  v.  Hart,  2  Russ.  & 
M.  360;  Hanson  v.  Keating,  4  Hare,  1  ;  Duberley  v.  Day,  16  Beav.  33,  41. 

In  Duberley  v.  Day,  Sir  J.  Romilly,  M.  R.,  said,  p.  41  :  "  It  is  quite  settled,  that  at 
law  a  husband  may  dispose  of  the  wife's  term  which  is  vested  in  him,  whether  the 
wife's  beneficial  interest  in  it  is  to  arise  hereafter  or  immediately.  In  Donne  v.  Hart, 
2  Russ.  &  M.  360,  the  Master  of  the  Rolls  [Sir  John  Leach],  decided,  that  there  is  no 
difference  in  equity  between  the  legal  interest  in  a  term  and  the  trusts  of  a  term,  and 
held  that  the  assignment  by  the  husband  of  the  reversion  of  the  wife  in  a  chattel  real 
was  a  good  and  effectual  disposition  of  it,  and  bound  the  wife,  who  survived  the  hus- 
band." See  also  Re  Bellamy,  25  Ch.  D.  620.  In  the  case  before  him,  tlie  learned  judge 
decided  that  the  husband  had  not  the  power  to  dispose  of  the  trust  term  of  the  wife, 
inasmuch  as  by  the  limitations  to  her  it  could  not  in  any  event  vest  in  possession  during 
the  life  of  the  husband. 

The  husband's  rights  in  the  trust  property  of  his  wife  in  lands  of  freeholder  inheri- 
tance are  well  stated  in  the  following  extract  from  Lewin's  Trusts  (7th  ed.),  640: 
"  The  ca.se  of  the  wife's  equitable  estate  in  lands  of  freehold  or  inheritance,  presents  in 
the  main  the  same  general  similarity  to  the  case  of  her  legal  estate  in  lii<e  lauds,  as  has 
been  noticed  in  respect  of  chattels  real.  Thus  the  husband  without  the  wife  can,  in 
the  case  of  the  equitable  as  in  that  of  the  legal  interest,  convey  an  estate  for  the  joint 
lives  of  himself  and  his  wife,  {a)  or  for  his  own  life  after  issue  born.  So  he  and  his  wife 
conjointly  can,  by  deed  acknowledged  by  the  latter  under  the  Fines  and  Recoveries 
Act,  dispose  of  the  equitable  and  of  the  legal  interest ;  and  can  bar  an  equitable  entail 
as  they  might  a  legal  entail,  by  deed  enrolled  in  chancery."  —  Ed. 

(a)  As  to  the  legal  estate,  see  Robertson  v.  Norris,  11  Q.  B.  916. 


SECT,  v.]  ELWIN    V.    WILLIAMS.  387 

her  heirs,  &c.,  aud  Nicholson,  for  himself,  his  heirs,  &c.,  and  for  his  in- 
tended wife,  covenanted  with  the  trustees  that  in  case  the  marriage 
should  take  effect,  they  would,  as  soon  as  conveniently  might  be  after 
Sarah  should  attain  21  or  die  under  that  age,  assign  the  before-men- 
tioned moiety  of  the  testator's  residuary  estate  to  the  trustees,  in  trust 
for  Nicholson  aud  his  intended  wife  for  their  lives,  successively,  aud, 
after  their  deaths,  in  trust  for  their  children. 

The  marriage  was  solemnized  shortly  after  the  date  of  the  arti- 
cles, and  JMrs.  Nicholson  attained  21  in  August  1815.  In  March 
1821  her  mother  died.  In  March  1823,  a  settlement  was  made  for  the 
purpose  of  carrying  the  articles  into  effect,  to  which  Mr.  aud  Mrs. 
Nicholson  and  the  trustees  were  the  only  parties.  In  September  1838, 
Mr.  Nicholson  died,  leaving  his  wife  and  nine  children  by  her  sur- 
viving.    In  July  1839  Mr.  Ellison  died. 

At  Mr.  Ellison's  death  the  stock  in  the  funds,  which  formed  part  of 
the  testator's  residuary  estate,  remained  standing  in  the  names  of  the 
trustees  of  the  ivill. 

The  bill  was  filed  by  the  trustees  of  the  settlement,  against  the  trus- 
tees of  the  testator's  will,  and  Mrs.  Nicholson  aud  her  children,  and 
certain  other  persons,  stating  that  Mrs.  Nicholson  alleged  that,  as  she 
was  an  infant  tvhen  the  articles  on  her  marriage  ivere  executed,  she  was 
not  hound  thereby^  and  that  she  was  entitled  to  have  a  moiety  of  the 
stock  which  had  formed  part  of  the  testator's  residue,  transferred  to 
her ;  and  stating  also  that  Mrs.  Nicholson's  children  made  claims  ad- 
verse to  their  mother ;  and  praying  that  the  rights  and  interests  of  the 
plaintiffs,  as  the  trustees  of  the  articles,  and  of  the  several  defendants, 
to  and  in  the  property  in  question,  might  be  ascertained  aud  declared 
by  the  Court. 

Mr.  Stuart  aud  Mr.  Younrje  appeared  for  the  plaintiffs. 

Mr.  Teed  and  Mr.  Rogers,  for  Mrs.  Nicholson. 

Mr.  Anderdoii  and  Mr.  Spurrier,  for  some  of  Mrs.  Nicholson's 
children. 

The  ViCE-CiiANCELLOR :  Before  I  part  with  this  case,  I  will  look 
through  all  the  authorities  from  the  beginning  to  the  cud.  I  confess 
that  at  present  1  have  a  strong  impression  on  my  mind  that  there  is 
no  case  in  which  the  Court  has  held  the  wife's  riglit  by  survivorship  to 
bo  barrel,  where  the  husband  has,  for  a  valuable  consideration,  as- 
signed his  wife's  equitable  chose  in  action,  which  was  cai)able  of  Iteing 
reduced  into  possession  at  the  time,  and  luis  died  before  the  assignee 
has  attempted  to  reduce  it  inlo  iiossession. 

The  VicK-CnANCKLLou  :  Aftur  repeated  discussion,  in  the  case  of 
Purdew  /;.  Jack.son,  before  Sir  Thomas  I'hinicr  and  by  Sir  Tiionias 
himself,  he  said  :  "  After  this  repeated  consideration  of  tlie  subject,  I 
still  continue  of  opinion  that  all  assignments  made  by  the  luisbMud,  of 
tlio  wife's  outstanding  personal  chattel,  whicli  is  not  or  cannot  Ik-  then 
reduced  into  {tossession,  whether  tlie  assignment  be  in  bankruptcy,  or 
under  the  Insolvent  Acts,  or  to  trustees  for  payment  of  debts,  or  to  a 


388  ELWIN   V.  WILLIAMS.  [CHAP.  IIL 

puirlKiscr  for  valuable  consideration,  pass  only  the  interest  which  the 
husband  has  subject  to  the  wife's  legal  right  by  survivorship."  ^ 

lu  that  case,  Mrs,  Bolton  being  entitled  to  a  share  of  £3  per  cents, 
after  the  death  of  Isabella  Purdew,  she  and  her  husband  executed  an 
assignment  of  her  share,  to  Rose,  for  valuable  consideration.  Then 
Bolton,  the  husband,  died.  Afterwards,  Isabella  Purdew  died  ;  and 
the  question  was  whether  Rose  was  entitled  to  the  share,  or  Mrs.  Bol- 
ton and  those  who  claimed  under  her.  And  Sir  Thomas  Plunier,  in 
conformity  with  what  he  had  before  said,  decided  that  Rose  was  not 
entitled,  but  that  the  share  belonged  to  Mrs.  Bolton  and  those  who 
claimed  under  her. 

Precisely  the  same  question  arose  in  Honner  v.  Morton,'^  and  the  pre- 
sent Lord  Chancellor  decided  in  the  same  way.  Upon  the  question  that 
arose  in  those  two  cases  I  must  consider  the  law  as  settled.^ 

In  the  course  of  the  first  argument  in  Purdew  v.  Jackson,  the  Master 
of  the  Rolls  put  this  question  :  "  Is  there  any  case  in  which,  the  husband 
having  assigned  the  wife's  present  chose  in  action  and  having  died  be- 
fore the  assignee  obtained  possession  of  it,  the  assignee  prevailed  over 
the  surviving  wife."*  The  leading  counsel  on  both  sides,  one  of  whom 
was  the  present  Lord  Chancellor  of  Ireland,  said:  "We  believe  that 
such  a  case  has  not  occurred."  A  note  to  the  report  seems  to  call  in 
question  the  accuracy  of  that  answer,  and  it  refers  to  the  case  of  The 
Earl  of  Salisbury  v.  Newton  and  to  the  case  of  Bates  v.  Daudy,  of 
which,  besides  the  report  in  Atkyns,  one  statement  is  given  in  a  note 
to  Purdew  v.  Jackson,  at  page  33,  and  another  in  a  note  to  Honner  v. 
Morton,  at  page  72.  It  appears,  from  the  report  of  The  Earl  of  Salis- 
bury V.  Newton,  in  1  Eden,  that  the  only  point  made  by  the  counsel 
for  the  widow,  was  that  she  was  entitled  to  have  a  settlement ;  and,  as 
to  Bates  v.  Daudy,  Lord  Lyndhurst,  in  3  Russ.  p.  72,  observes  that  no 
doubt  could  be  entertained  as  to  the  husband's  power  over  the  property  : 
and  the  application  of  that  case  to  the  present  question,  rests,  not  on 
the  deci'ee,  but  on  a  dictum  which  was  wholly  unnecessary  for  the  de- 
cision of  the  actual  points  which  were  before  the  Court :  so  that  the 
answer  of  the  counsel  was,  in  substance,  correct.  As  to  the  case  of 
Lord  Carteret  v.  Paschal, ^  on  which  Mr.  Anderdon  seemed  to  lay  great 
stress,  it  actually  was  decided  on  the  ground,  not  that  the  hus])and 
could  assign  his  wife's  chose  in  action,  but  that  he  might  assign  her 

1  1  Russ.  70.  2  3  T{uss.  65. 

*  Hornsby  v.  Lee,  2  Med.  16  ;  Purdew  v.  Jackson,  1  Russ.  1  ;  Honner  v.  Morton, 
.3  Russ.  65  ;  Aahby  v.  Ashby,  1  Coll.  553 ;  Stiffe  v.  Everitt,  1  M.  &  Cr.  37 ;  Harley  v. 
Ilarley,  10  Hare,  325  ;  Heath  w  Lewis,  4  Giff.  665  ;  Baldwin  >'.  Baldwin,  5  DeG.  &  Sm. 
819 ,  Re  Insole,  35  Beav.  92 ,  Swift  v  Werman,  10  Eq.  15  ;  Box  v.  Box.  6  Ir.  Eq.  174 
Accord.  In  the  United  States,  also,  it  became  the  rule  that  the  assignment  of  a  wife's 
reversionary  interest  in  a  legal  chose  in  action  does  not,  of  itself,  destroy  her  right  of 
survivorship.  Lynn  v.  Bradley,  I  Met.  (Ky.)  232;  Wood  c.  Simmons,  20  Mo.  363  ; 
Needles  v.  Needles,  7  Oh.  St.  432 ;  Matteney  v.  Guess,  2  Hill,  Ch.  63 ;  Browning  v. 
Headlev,  2  Rob.  Va.  340.     But  see  contra,  Woelper's  A  pp.  2  Barr,  71.  —  Ed. 

*  1  Russ.  19.  ^  3  r.  W.  197. 


SECT,  v.]  MILLER   V.   BINGHAM.  389 

interest  in  land  in  the  nature  of  an  equitable  extent  under  Lord  Cow- 
per's  decree.  And  it  is  also  observable,  from  what  is  stated  on  page 
199,  that  Lord  King  appeared  to  be  of  opinion  that  if  the  wife's  chose 
in  action  was  not  reduced  into  possession  during  the  husband's  life,  it 
survived  to  her  as  against  his  assiguee. 

It  is  useless  to  be  always  travelling  over  the  same  ground.  I  con- 
sider the  pi'inciple  laid  down  by  Sir  Thomas  Plumer  and  twice  affirmed 
by  the  Lord  Chancellor,  to  be  decisive  of  the  present  question.  "Whether 
the  husband  dies  in  the  lifetime  of  the  tenant  for  life,  whereby  the  chose 
in  action  cannot,  as  against  the  wife,  be  reduced  into  possession,  or 
whether  he  survives  and  dies  before  it  is  reduced  into  possession,, 
the  same  result  must,  in  my  opinion,  follow :  and  the  consequence  is 
that,  in  the  present  case,  a  declaration  must  be  made  that  Mr.  Nichol- 
son's covenant,  which  might  operate  as  an  assignment,  does  not  now 
affect  that  portion  of  the  choses  m  action  of  his  wife,  which  was  not 
reduced  into  possession  in  his  lifetime.^ 


.T** 


ANNE  MILLER  v.   LEMUEL  BINGHAM  and  Others, 

Executors. 

In  the  Supreme  Court,  North  Carolina,  June,  1841. 

[Reported  in  1  Iredell  Equiti/,  423.] 

This  was  a  case  transmitted  by  consent  from  the  Court  of  Equity  of 
Davie  County,  at  Fall  Term,  1840,  to  the  Supreme  Court  for  hearing. 
The  pleadings  and  facts  are  set  forth  in  the  opinion  of  this  court. 

D.  F.  Cahhcdl  and  Iredell  for  the  phiintiff. 

Waddell  and  Barrinyer  for  the  defeudanls. 

Daniel,  J.  Maxwell  Chambers,  the  father  of  the  phiintilT,  be- 
queathed as  follows  :  "  I  give  and  bequeath  to  my  son,  Edward  Cham- 
bers, as  trustee  of  my  daughter,  Anne  Chamliers  (wife  of  Ilein-y  Cham- 
bers), the  following  upgroes  :  Heck,  <Sir.  to  have  and  to  hold  to  my  «aid 
son,  Edward,  in  trust,  and  for  the  bi-nelit  of  my  daughter,  Anne  Cham- 
bers, and  her  heirs  forever.     It  is  my  wish  and  request  that  my  sou 

1  Miclif^Imoro  v.  Mudge,  2  CJiff.  183;  Trnli-  /•  .Soady,  .'J  Ch.  220  An-ord.  In  this 
country  tlio  authorities*  iiro  divided  n»  to  wlietlicr  the  a.ssiKnin(>iit  liy  tho  liu.sli.'unl  of  his 
vf'xfe'H  jirfisi^iit  legal  chose  in  nrlion  will  drfcat  iier  right  of  Hurvivorshi]).  'I'tio  wife's 
right  wa.s  estahli.shefi,  as  in  the  j)rin(ipal  cjise,  in  Cicorge  v.  (joldsiiy,  2.'J  Ala.  22(> ; 
State  V.  Robertson,  ."i  Ilarringt.  201  ;  Arrington  v.  Yarborough,  1  Jones,  K(j.  72  ;  liugg 
V.  Franklin,  4  Sneed,  129  (xrmhir)  ;   1  Hiwhoi),  Mar.  Worn.  §§  N5-ir)r.. 

Hut  see  coiilrn,  Tuttle  »•.  Fowler,  22  Conn  ."iK ;  Wright  i'.  Arnold  14  IJ.  Mon  6.38  ; 
Lynn  v.  Bradley,  1  Met.  (Ky.)  232  ($enihU) ;  Schuyler  v.  Iloyle,  .5  Johns,  (-'h.  196 
{semble)  ;  Wfstcrvelt  r.  C'ircgg.  12  N.  Y.  200,  20.')  {.ipinhli)  ;  Siter's  Csvo,  4  I{awle.  408  , 
Tritt  i;.  Colwell,  .Tl  I'a.  228;  Matlhcncy  r.  (iuess,  2  Mill,  Ch.  03  {sembli )  ,  Hill  u 
Townsend,  24  Tex.  575 ;  Browning  v.  licadley,  2  Kob.  Va.  .340.  —  Ed. 


390  MILLER  V.   BINGHAM.  [CHAP.  IIL 

Edward  will  pay  over  to  my  daughter  Auue,  the  profits  arising  from 
the  said  uogroos,  semi-auuually,  for  her  support  and  comfort."  lu  a 
codicil  to  the  will,  the  testator  says,  "  My  iuteutiou  iu  the  devise  of 
the  five  uegroes,  to-wit,  Beck,  &c.  to  my  son,  Edward  Chambers,  as 
trustee  of  my  daughter,  Anne  Chambers,  is  this  :  I  give  the  five  negroes, 
to-wit,  Beck,  &e.  to  Edward  Chambers  to  hold  in  trust,  and  for  the  sole 
benefit  of  my  daughter  Anne,  to  support  her  during  her  life,  with  the 
profits  arising  from  the  labor  and  hire  of  the  said  five  negroes,  and 
tlieir  increase.  And  if  my  daughter  Anne  should  have  lawful  issue 
living,  at  the  time  of  her  death,  then  I  devise  and  order  that  the  said 
Edward  Chambers,  trustee  of  my  said  daughter  Anne,  shall  deliver 
and  convey  absolutely,  at  the  death  of  my  said  daughter,  the  said  five 
negroes  and  increase,  to  the  said  lawful  issue  of  my  said  daughter  Anne,' 
living  at  the  time  of  her  death.  And  if  my  daughter,  Anne  Cham- 
bers, should  die  without  having  issue,  that  then  my  son  Edward  shall 
convey  the  said  five  uegroes  and  increase  in  equal  shares  to  my  heirs, 
or  shall  sell  the  negroes  and  divide  the  money  in  equal  proportions 
among  my  beirs."  Henry  Chambers  died,  and  his  widow,  the  said 
Anne,  married  George  Miller.  The  trustee  died,  and  George  Miller  was 
appointed  trustee  by  the  Court  of  Equity,  and  took  into  his  possession 
the  said  slaves.  George  Miller  then  died,  and  the  defendants  are  his 
executors.  Anne,  the  widow,  claiming  as  cestui  que  trust,  has  filed 
this  bill,  for  an  account  of  the  rents  and  hires  of  the  said  slaves,  since 
the  death  of  Miller,  her  last  husband.  The  defendants  have  answered 
and  claim  the  rents  and  hires  of  the  negroes,  as  belonging  to  the  estate 
of  their  testator. 

That  the  slaves  were  well  settled  by  the  will  to  the  separate  use  of 
Anne  Chambers,  and  excluded  any  right  of  her  then  husband  Henry 
Chambers,  is  very  clear.  Davis  v.  Cain  ;  ^  Kudisill  v.  Watson.'^  But 
there  is  nothing  in  the  will  of  Maxwell  Chambers  to  show,  tliat  he  an- 
ticipated a  second  marriage  of  his  daughter,  and  he  did  not  attempt  to 
provide  against  such  a  contingency.  The  equitable  interest  in  the 
slaves  was  given  to  the  plaintiff  for  life.  In  this  court  the  trust  in  a 
thing  is  the  estate  in  that  thing.  The  plaintiff,  therefore,  had  a  right 
to  make  an  assignment  of  her  interest  in  the  slaves  ;  on  her  second 
marriage,  therefore,  her  interest  passed  to  her  husband.  The  second 
husband  took  the  slaves  into  his  possession.  If,  however,  he  had  not 
taken  them  into  his  actual  possession,  and  they  had  been  in  the  posses- 
sion of  any  other  trustee  under  the  will,  still  such  a  possession  would  not 
have  been  adverse  to  the  husband  ;  for  the  actual  possession  of  the  trustee 
is  but  considered  as  that  of  the  person  beneficially  entitled  ;  indeed  the 
estate  of  the  trustee  exists  entirely  for  the  benefit  of  the  cestui  que  trust. 
Where  the  trust  is  express,  as  in  this  case  it  is,  there  can  be  no  adverse 
possession  between  the  trustee  and  cestui  que  trust.  It  is  not,  how- 
ever, of  course,  to  divest  the  trustee  of  the  management  of  the  trust 

1  1  Ired.  Eq.  Eep.  304.  '       2  2  Dev.  Eq.  Rep.  430. 


SECT,  v.]  MILLER   V.   BINGHAM.  391 

property,  and  to  deliver  the  possessiou  to  the  cestui  que  trust  for  life. 
It  must  depend  on  the  intention  of  the  settler,  or  him,  by  whom  the 
trust  was  created.  Tidd  v.  Lister  ;  ^  Dick  v.  Pitchford.-  A  chose  in 
the  possession  of  the  trustee  of  the  feme,  therefore,  is  not  a  chose  in 
actioii,  but  it  is  a  chose  in  possession,  and  will  on  her  marriage  (if 
a  chattel)  pass  to  her  husband.'  Granbery  v.  Mhoon  ;''  Pettijohn  v. 
Beasley.^  A  trust  is  not,  as  it  was  formerly  held,  a  cJiose  in  action^ 
but  a  present  interest,  an  estate  in  possession.  Mitford  v.  Mitford  ; ' 
Burgess  v.  Wlieate.''  Lewin  on  Trusts,  523.  The  circumstance  of  the 
trustee  being  directed  to  pay  the  rents  and  hires  semi-annuaUi/  does  not 
alter  the  case.  In  Benson  v.  Benson,*  the  testator  directed  the  interest 
of  £10,000  to  be  for  the  separate  use  of  his  daughter  Jane  Lane,  the 
wife  of  J.  Lane,  for  her  life,  free  from  the  debts  of  her  husband,  to  be 
paid  to  her  at  the  end  of  every  six  months.  The  husband  died  and  his 
widow  married  again.  Held,  that  the  trust  for  her  separate  use  ceased 
on  the  death  of  her  first  husband,  and  that  the  second  husband  was  en- 
titled to  the  interest.  The  same  doctrine  was  laid  down  by  the  court  in 
Knight  V.  Knight.^  These  two  cases  are  decisive  against  the  plaintiff 
on  all  the  points  in  the  case.  The  bill  must  be  dismissed  with  costs. 
Per  Curiam.  Bill  dismissed  with  costs. 

1  5  Mad.  Rep  429.  2  i  Dgy.  &  Bat.  480. 

8  Murray  v.  Elibank,  10  Ves.  84,  90  (semble)  ;  Molony  i-  Keunedy,  10  Sim.  254; 
Osborn  v.  Morgan,  9  Hare,  432 ;  Widgery  v.  Tepper,  7  Ch.  Div.  493  ;  Brauch  Bauk  v. 
Wilkins,  7  Ala.  589  ;  Lenoir  v.  Raiiiey,  15  Ala.  667;  Lindsay  v.  Harrison,  8  Ark.  302; 
Pope  V.  Tucker,  23  Ga.  484  ;  Murphy  v.  Grice,  2  Dev.  &  B.  (Eq.)  199  ;  Beall  i\  Darden, 
4  Ired.  Eq.  76  Arrnrd. 

In  Osborn  v.  Morgan,  supra,  Sir  G.  J.  Turner,  V.  C,  said,  p.  433  :  "  Marriage  is  a 
gift  to  the  husband  of  all  the  personal  property  to  which  the  wife  is  entitled  in  posses- 
sion, and  oi  all  the  personal  propurty  of  which  she  may  become  entitled,  subject  only  to 
the  condition  of  reducing  it  into  pcjssession  during  the  coverture;  and  I  am  aware  of 
no  distinction  in  this  respect  between  property  to  which  the  wife  is  entitled  in  equity, 
and  property  to  which  she  is  entitled  at  law.  Nor  upon  princij)le  can  thorp  bo  any 
such  distinction,  the  rule  resting  as  1  conceive  upon  this,  —  tiiat  the  husliand  and  wife 
are  in  law  one  person,  —  a  rule  which  prevails  in  equity  as  much  as  at  law."  See  also 
Lewin,  Trusts  (9th  ed.)  833.—  Ed. 

*  1  Dev.  456.  '  4  Dev.  512. 

•  9  Ves.  98,  99.  ^  1  Eden,  223,  224. 
»  6  Sim.  126.  »  6  Sim.  121. 


392  EX   TAliTE   CHION.  [CHAI'.  III. 


SECTION  VI. 

By  Bankruptcy, 
(a)  Bankruptcy  of  the  Trustee. 

Ex  PARTE   CHION. 

In  Chancery,  before  Lord  Parker,  C,  Trinity  Term,  1721. 

[Reported  in  3  Peere  Williams,  187  note  {A).] 

A  TRADER  in  London  having  money  of  J.  S.  (who  resided  in  Holland) 
in  his  hands,  bought  South  Sea  stock,  as  factor  for  J.  S.,  and  took  the 
stock  in  his  own  name,  but  entered  it  in  his  account  book,  as  bought 
for  J.  vS.,  after  which  the  trader  became  bankrupt.  Determined,  that 
the  trust  stock  was  not  liable  to  the  bankruptcy.  By  the  Lord  Parker, 
who  said  it  would  lessen  the  credit  of  the  nation  to  make  such  a 
construction.^ 

1  Scott  V.  Surman,  Willes,  400,  402  {semble) ;  Carpenter  v.  Marnell,  3  B.  &  P.  40 ; 
Ex  parte  Dumas,  2  Ves.  582;  Wiuch  v.  Keeley,  1  T.  R.  619 ;  Gladstone  v.  Hadwen,  1 
M.  &  S.  517;  Ex  parte  Gennys,  Mont.  &  M,  258;  Ex  parte  Painter,  2  ID.  &  C.  584; 
Leslie  v.  Gutherie,  1  B.  N.  C.  697  ;  Daugerfield  v.  Thomas,  9  A.  &  E.  292  ;  Parnham 
r.  Hurst,  8  M.  &  W.  743  ;  Boddington  v.  Castelli,  1  E.  &  B.  879;  Westoby  v.  Day, 
2  E.  &  B.  605,  624;  Houghton  ?;.  Koenig,  18  C.  B.  235  ;  Fleeming  v.  Howden,  L.  K. 
1  Sc.  Ap.  372  ;  St.  32  &  33  Vict.  c.  71,  §  15  ;  U.  S.  Rev.  St.  §  5053 ;  Hosmer  i'.  Jewett, 

6  Ben.  208;  Butler  v.  Merchants'  Co.,  14  Ala.  777,  798;  Boon  v.  Stone,  8  111.  537; 
Rhoades  v.  Blackiston,  106  Mass.  334;  Faxon  v.  Folvey,  110  Mass.  392;  Chace  v. 
Chapin,   130  Mass    128;   Kip  f.   Bank  of  N.  Y.,  10  Johns.  63;  Dexter  v.  Stewart, 

7  Johns.  Ch.  52;  Hopkins  v.  Banks,  7  Cow.  650;  Ontario  Bank  v.  Mumford,  2  Barb. 
Ch.  596  ;  Blin  v.  Pierce,  20  Vt.  25  Accord. 

Similarly  the  assignees  of  a  bankrupt  executor  do  not  take  the  legal  title  to  the 
assets  of  the  testator.  Ex  parte  Ellis,  1  Atk.  101  ;  Ex  parte  Butler,  1  Atk.  210,  213; 
Note  per  Lord  Mansfield,  3  Burr.  1369  ;  Farr  v.  Newman,  4  T.  R.  629,  per  Grose,  J. ; 
Viner  v.  Cadell,  3  Esp.  88. 

If  a  bankrupt  who  holds  the  legal  title  to  property  has  also  a  share  in  the  beneficial 
interest  therein,  the  legal  title,  it  is  said,  passes  to  his  assignee  in  bankruptcy. 
Burn  V.  Carvalho,  4  B.  &  Ad.  382  ;  1  A.  &  E.  883  ;  4  M.  &  Cr.  695,  s.  c. ;  Leslie  v. 
Guthrie,  1  B.  N.  C.  697  (semble) ;  Dangerfield  v.  Thomas,  9  A.  &  E.  292  (semble) ;  Parn- 
ham V.  Hurst,  8  M.  &  W.  743  (semble)  ;  Boddington  v.  Castelli,  1  E.  &  B.  879  (semble) ; 
Rhoades  v.  Blackiston,  106  Mass.  334  (semble) ;  Swepson  v.  Rouse,  65  N.  Ca.  34.  But 
this  rule  should  not  apply  where  the  bankrupt  is  expressly  a  trustee.  Lewin,  Trusts 
(7th  ed.),  220,  221 ;  Webster  v.  Scales,  4  Doug.  7. 

Wherever  the  assignee  of  a  bankrupt  trustee  does  acquire  the  legal  title,  he  takes  it 
of  course  subject  to  the  same  equities  to  which  it  was  subject  in  the  hands  of  the 
trustee.  Taylor  v.  Wheeler,  2  Vern.  564;  Tyrrell  v.  Hope,  2  Atk.  558;  Ex  parte 
Coysegame,  1  Atk.  192;  Ex  parte  Dumas,  2  Ves.  582,  585;  Hinton  v.  Hinton,  2  Ves. 
631,  6.33  ;  Bowles  v.  Rogers,  6  Ves.  95,  n.  (55) ;  Mitford  v.  Mitford,  9  Ves.  87,  100; 
Mestaer  v.  Gillespie,  11  Ves.  621,  624;  Ex  parte  Hanson,  12  Ves.  346,  349  ;  Ex  parte 
Herbert,  13  Ves.  183,  188;  Grant  i;.  Mills,  2  V.  &  B.  306,  309;  Waring  v.  Coventrj, 


SECT.  VI.]  EX   PAETE   CIIION.  393 

2  M.  &  K.  406 ;  Jones  v.  Mossop,  3  Hare,  568,  572 ;  Frith  v.  Cartland,  2  H.  &  M. 
417;  Fleeming  v.  Howden,  L.  R.  1  Sc.  Ap.  372;  Ex  parte  Rabbidge,  8  Ch.  D.  367; 
Harris  v.  Truman,  7  Q.  B.  D.  340,356;  Cook  v.  Tullis,  18  Wall.  332;  Yeatman  v. 
Savings  Inst.,  95  U.  S.  767 ;  Stewart  v.  Piatt,  101  U.  S.  731 ;  Hauselt  v.  Harrison,  105 
U.  S.  401  ;  Scammon  v.  Bowers,  1  Hask  496;  Williamson  v.  Colcord,  1  Hiisk.  620; 
Exchange  Bank  v.  Stone,  80  Ky.  109;  Chace  v.  Chapiu,  130  ^lass.  12S;  Holmes  v 
Winchester,  133  Mass.  140;  Sibley  v.  Quinsigamond  Bank,  133  Mass.  515;  Low  i- 
Welch,  139  Mass.  33  ;  Smythe  v.  Sprague,  149  Mass.  312;  Re  Howe,  1  I'aige,  125, 128 
Ludwig  V.  Highley,  5  Barr,  132,  138  (semble). 

The  rule  is  the  same  where  a  trustee  makes  an  assignment  of  trust  property  for  the 
benefit  of  his  creditors.  Frow  v.  Downman,  11  Ala.  880:  Walker  i-.  Miller,  11  Ala. 
1067 ;  Willis  r.  Henderson,  5  111.  13  ;  O'Mara  v.  Jones,  46  111.  288  ;  Roberts  v.  Corbin, 
26  Iowa,  315;  Kayser  v.  Heaveurich,  5  Kan.  324,  340;  Corn  v.  Sims,  3  Met.  (Ky.) 
391;  Bridgeford  v.  Barbour,  80  Ky.  529;  Tyler  v.  Abington,  65  Md.  18;  Clarke"  v. 
Flint,  22  Pick.  231  ;  Chace  u.  Chapiu,  130  Mass.  128;  Piersou  r.  Manning,  2  Mich.  445 
(overruling  Hollister  v.  Loud,  2  Mich.  309)  ;  Flanigau  r.  Lampmau,  12  Mich.  61  ; 
Brown  v.  Brabb,  67  Mich.  17 ;  Paine  v.  Aberdeen  Co.,  60  Jliss.  360;  Peet  f.  Spencer,  90 
Mo.  384  ;  Haggerty  v.  Palmer,  6  Johns.  Ch.  437 ;  Re  Howe,  1  Paige,  125 ;  Slade  v.  Van 
Vechten,  11  Paige,  21 ;  Griffin  v.  Marquardt,  17  N.  Y.  28;  Van  Heusen  i'.  Radcliff,  17 
N.  Y.  580  (overruling  opinion  of  Kent,  C,  in  Dey  v.  Dunham,  2  Johns.  Ch.  182,  188) ; 
Bliss  i;.  Cottle,  32  Barb.  322;  Reed  v.  Sands,  37  Barb.  185;  Coatesn.  First  Bank,  91 
N.  Y.  20;  Arnold  v.  Morris,  7  Daly,  498;  Kraft  v.  Dulles,  2  Ciucin.  S.  C.  R.  116 ;  Mor- 
gan V.  Kinney,  38  Oh.  St.  610;  Manning  v.  Purcell,  46  Oh.  St.  102;  Mellon 's  App.,  32 
Pa.  121;  Lancaster  Bank  v.  Huver,  114  Pa.  216;  Williams  v.  Winsor,  12  R.  L  9; 
Plumkett  V.  Carew,  1  Hill,  Ch.  169;  Rohrbough  r.  Leopold,  68  Tex.  254.  But  see 
contra,  Wickham  v.  Martin,  13  Grat.  427  ;  Evans  v.  Greenhow,  15  Grat.  153. 

The  possession  of  trust  property  by  the  trustee  does  not  bring  it  within  the  "  order 
and  disposition  "  clause  of  the  English  Bankruptcy  Act's.  See  authorities  cited  supra 
p.  277,  n.  4.  — Ed. 


394  •  BRANDON   V.   ROBINSON.  [CIIAP.  IIL 


SECTION  VI.  (co7itinued.) 
(b)  Bankruptcy  of  the  Cestui  que  Trust. 

BRANDON  V.   ROBINSON. 
In  Chancery,  before  Lord  Eldon,  C,  December  18,  1811. 

[Reported  in  18  Vesei/,  429.'] 

The  bill  stated  that  Stephen  Goom,  by  his  will,  dated  the  1st  of 
August,  1808,  devised  and  bequeathed  to  the  defendants  Robinson 
and  Davies  all  his  real  and  personal  estates  upon  trust  to  sell,  and  to 
divide  or  otherwise  apply  the  produce  to  the  use  of  all  and  every  his 
child  or  children,  living  at  his  decease,  in  equal  proportions ;  deduct- 
ing from  the  share  of  Thomas  Goom  the  sum  of  .£500  which  had  been 
advanced  to  him,  and  from  the  share  of  William  Goom  what  should 
be  due  from  him  to  the  testator  at  his  decease,  —  the  said  sums  so  to 
be  deducted  to  be  divided  equally  among  the  other  children  ;  and  he 
declared  his  will,  that  the  said  several  legacies,  sliares,  and  eventual 
interests  of  such  of  the  legatees  as  at  the  time  of  his  decease  should 
have  attained  the  age  of  twenty-one  should  be  considered  as  vested 
interests  ;  and,  if  there  should  be  but  one  survivor,  upon  trust  to  pay 
and  transfer  the  same  unto  such  only  survivor,  his  or  her  executors, 
&c.,  for  his  or  her  own  use,  subject  nevertheless  to  such  directions  as 
after  mentioned  in  respect  to  the  shares  or  interests  of  such  of  the 
said  legatees  as  were  females,  and  also  in  respect  to  the  share  and 
interest  of  the  said  Thomas  Goom  ;  and  he  directed  that  the  eventual 
share  and  interest  of  his  said  son  Thomas  Goom,  of  and  in  his  estate 
and  effects,  or  the  produce  thereof,  should  be  laid  out  in  the  public 
funds  or  in  government  securities  at  interest  by  and  in  the  names  of 
his  said  trustees,  &c.,  during  his  life  ;  and  that  the  dividends,  interest, 
and  produce  thereof,  as  the  same  became  due  and  i)ayable,  should  be 
paid  by  them  from  time  to  time  into  his  own  proper  hands,  or  on  his 
proper  order  and  receipt,  subscribed  with  his  own  proper  hand,  to  the 
intent  the  same  should  not  be  grantable,  transferable,  or  otherwise 
assignable,  by  way  of  anticipation  of  any  unreceived  payment  or 
payments  thereof,  or  of  any  part  thereof;  and  that  upon  his  decease 
the  principal  of  such  share,  together  with  the  dividends  and  interest 
and  produce  thereof,  should  be  paid  and  applied  l)y  his  trustees  or 
executors,  their  heirs,  executors,  &c.,  unto  and  amongst  such  person 
or  persons  as  in  a  course  of  administration  would  become  entitled 
to  any  personal  estate  of  his  said  son  Thomas  Goom,  and  as  if  the 
same  had  been  personal  estate  belonging  to  him,  and  he  had  died 
intestate. 

1  1  Rose,  197,  8.  c  — Ed. 


SECT.  VI.]  BRANDON  V.   ROBINSON.  395 

The  bill  further  stated,  that  after  the  death  of  the  testator  his  son 
Thomas  Goom,  having  attained  the  age  of  twenty-one,  became  a 
bankrupt.  The  plaintiff  was  the  surviving  assignee  under  the  com- 
mission ;  and  the  bill  prayed  an  execution  of  the  trusts  of  the  will 
and  an  account,  that  the  estates  ma}'  be  sold,  and  the  clear  residue 
ascertained,  and  that  the  plaintiff  may  receive  the  benefit  of  such  part 
or  share  thereof,  or  of  the  interest  therein,  as  he  shall  be  entitled  to  as 
assignee  under  the  commission. 

To  this  bill  the  defendants,  the  trustees,  put  in  a  general  demurrer. 

Mr.  Hart  and  Mr.  Home,  in  support  of  the  demurrer. 

Mr.  Leach  and  Mr.  Roupellt  for  the  plaintiff',  gave  up  the  claim  to 
the  principal.' 

The  Lord  Chancellor  [Eldon]  .  There  is  no  doubt  that  property 
may  be  given  to  a  man  until  he  shall  become  bankrupt.^     It  is  equally  J 

clear,  generally  speaking,  that  if  property  is  given  to  a  man  for  his  ■*     jy,y 

life,  the  donor  cannot  take  away  the  incidents  to  a  life-estate  ;  and.  as  I  ^J^   Jf* 

have  observed,  a  disposition  to  a  man  until  he  shall  become  bankrupt,    (J^*^"^^ \p\^ 
and  after  his  bankruptcy  over,  is  quite  different  from  an  attempt  to         i^   %}^^ 
give  to  him  for  his  life,  with  a  proviso  that  he  shall  not  sell  or  alien  it.  I     x)^ 

If  that  condition  is  so  expressed  as  to  amount  to  a  limitation,  reducing 
the  interest  short  of  a  life-estate,  neither  the  man  nor  his  assignees 
can  have  it  beyond  the  pferiod  limited. 

In  the  case  of  Foley  v.  Burnell,^  this  question  afforded  much  argu- 
ment. A  great  variety  of  clauses  and  means  was  adopted  by  Lord 
Foley  witli  the  view  of  depriving  the  creditors  of  his  sons  of  any 
resort  to  their  property  ;  but  it  was  argued  here,  and,  as  1  thought, 
admitted,  that  if  the  property  was  given  to  the  sous,  it  must  remain 
subject  to  tiie  incidents  of  property,  and  it  could  not  be  preserved  from 
the  creditors,  unless  given  to  some  one  else. 

So  the  old  way  of  expressing  a  trust  for  a  married  woman  was,  that 
the  trustees  should  pay  into  her  proper  hands,  and  upon  her  own  re- 
ceipt only ;  yet  this  court  always  said  she  might  dispose  of  that 
interest,"'  and  her  assignee  would  take  it ;  as,  if  tiiere  was  a  contract, 
entitling  the  assignee,  this  court  would  compel  her  to  give  her  own 
receipt,  if  that  was  necessary  to  enable  him  to  receive  it.     It  was  not 

1  Tlio  ar^'inifi'tH  of  coiiii.sfl  ,iro  omittod.  —  En. 

2  Manning  v.  C'haiiiber.s,  1  l)e  G.  &  Sni.  282;  Sharp  v.  Cosscrat,  20  Beav.  470; 
Rochford  v.  llackman,  9  Ilaro,  475 ;  Joel  v.  Mills,  3  K.  &  J.  458;  Ilatton  i'.  May,  3 
Ch.  I),  148;  R<i  BodHOii's  Trusts,  28  Ch.  I).  r.2.T  ;  Nichols  i'.  Eaton,  <.»1  U.  S.  Tlfi; 
Bull  V.  Ky.  Bank  (Ky.,  IBOO),  14  S.  W.  H.  42.');  Wanif-r  v.  Biro,  CO  Md.  4.10,  440; 
Bramhall  v.  Ferris,  14  N.  Y.  41  ;  WietiiiK  v.  BcllinKnr,  50  llun,  324,  329  ;  Tillin^rhast 
V.  Bradford,  5  U.  I.  20.');   lloatli  v.  Binhoj).  4  Bich.  E(|.  46  Accord. 

(,'onf.  Davidson  >•.  Clialmors,  33  l'>oav.  CM  (hut  see  Statu  Bank  v.  Forney,  2  Ircd. 
Eq.  181). 

See  also  Re  Jones's  Will,  23  L.  T.  Kep.  211  ;  Metcalfe  v.  Metialfe,  43  Ch.  I).  f..'33. 
—  Ei). 

8  1  Bro.  C.  C.  274. 

♦  I'ybus  V.  Smith,  1  Ves.  Jr.  189 ;  3  Bro.  C.  C.  340.  Sec  the  notes,  1  Ves.  Jr.  194  ; 
5  Ves.  17. 


96  BPiANDON   V.   KOBINSON.  [CHAP.  III. 


before  INIiss  Watson's  Case  that  these  words,  "  not  to  be  paid  by  an- 
ticipation," etc.,  were  introduced.  I  believe  these  were  Lord  Thur- 
low's  own  words,  with  whom  1  had  much  conversation  upon  it.  lie 
did  not  attempt  to  take  away  any  power  the  law  gave  her,  as  incident 
to  property,  which,  being  a  creature  of  equity,  she  could  not  have  at 
law  ;  but  as  under  the  words  of  the  settlement  it  would  have  been 
hers  absolutely,  so  that  she  could  alien.  Lord  Thurlow  endeavored  to 
prevent  that  by  imposing  upon  the  trustees  the  necessity  of  paying  to 
her  from  time  to  time,  and  not  by  anticipation ;  reasoning  thus,  that 
equit}',  making  her  the  owner  of  it,  and  enabling  her,  as  a  married 
woman,  to  alien,  might  limit  her  power  over  it :  but  the  case  of  a  dis- 
position to  a  man,  who,  if  he  has  the  property,  has  the  power  of 
aliening,  is  quite  different. 

This  is  a  singular  trust.  If  upon  these  words  it  can  be  established 
that  he  had  no  interest,  until  he  tenders  himself  personally  to  the 
trustees  to  give  a  receipt,  then  it  was  not  his  property  until  then ; 
but  if  personal  receipt  is  m  the  construction  of  this  court  a  necessary 
act,  it  is  very  difiicult  to  maintain  that  if  the  bankrupt  would  not  give 
a  receipt  during  his  life,  and  an  arrear  of  interest  accrued  during  his 
whole  life,  it  would  not  be  assets  for  his  debts.    It  clearly  would  be  so. 

Next,  is  there  in  this  will  enough  to  show  that,  as  this  interest  is 
not  assignable  by  way  of  anticipation  of  any  unreceived  payment, 
therefore  it  cannot  be  assigned  and  transferred  under  the  commission 
of  bankruptcy?  To  prevent  that  it  must  be  given  to  some  one  else  ; 
and  unless  it  can  be  established  that  this  by  implication  amounts  to  a 
limitation,  giving  this  interest  to  the  residuary  legatee,  it  is  an  equi- 
table interest,  capable  of  being  parted  with.  The  principal,  at  the 
death  of  the  bankrupt,  will  be  under  quite  different  circumstances. 
The  testator  had  a  right  to  limit  his  interest  to  his  life ;  giving  the 
principal  to  such  person  as  may  be  his  next  of  kin  at  his  death,  to  take 
it  as  the  personal  estate,  not  of  the  son,  but  of  him  the  testator,  —  as 
if  it  was  the  son's  personal  estate,  but  as  the  gift  of  the  testator. 

The  demurrer  must,  upon  the  whole,  be  overruled.^ 

1  Graves  v.  Dolphin,  1  Sim.  66 ;  Green  v.  Spicer,  1  Russ.  &  M.  395 ;  Piercy  v. 
Roberts,  1  M.  &  K.  4;  Snowdon  i;.  Dales,  6  Sim.  524;  Youiighusband  v.  Gi-sborne 
(questioning  Twopenny  v.  Peyton,  10  Sim.  487) ;  Rippon  v.  Norton,  2  Beav.  63  ;  Page 
V.  Way,  3  Beav.  20  ;  Lord  v.  Bunn,  2  Y.  &  C  C.  C.  98  ;  Kearsley  v.  Woodcock,  3  Hare, 
185;  Rochford  v.  Hackman,  9  Hare,  475,  480  (se.mhle)  ;  Wallace  v.  Anderson,  16 
Beav.  533  ;  Sanford  v.  Lackland,  2  Dill.  6  (spmhle) ;  Rugely  v.  Robinson,  10  Ala.  702; 
Robertson  v.  Johnston,  36  Ala.  197 ;  Smith  v.  Moore,  37  Ala.  327  ;  Jones  v.  Reese, 
fi5  Ala.  134;  Taylor  v.  Harwell,  65  Ala.  1  ;  Bell  v.  Watkius,  82  Ala.  512;  Lindsay 
V.  Plarrison,  8  Ark.  302,  311  {spmhle)  ;  Ea.sterly  v.  Kenny,  36  Conn.  18  (semhie)  ; 
Gray  v.  Corbit,  4  Del.  Ch.  135,  167;  Kcmpton  v.  Hallowell,  24  Ga.  52;  Gray  v.  Obcar, 
54  Ga.  231 ;  Bailie  v.  McWhorter,  56  Ga.  183 ;  Samuel  v.  Salter,  3  Met.  (Ky.)  259 ; 
Knefler  v.  Shreve,  78  Ky.  297  {semhie);  Parsons  v.  Spencer,  83  Ky.  305;  Marshall 
v.  Rash,  87  Ky.  116;  Woolley  v.  Preston,  82  Ky.  415;  Bland  v.  Bland  (Ky.,  1890), 
14  S.  W.  R.  423  ;  Bull  v.  Ky.  Bank  (Ky.,  1890),  14  S.  W.  R.  425  ;  Hallett  v.  Thomp- 
son, 5  Paige,  583 ;  Bryan  v.  Knickerbacker,  1  Barb.  Ch.  409  ;  Havens  v.  Healy,  15 
Barb.  296 ;  Rome  Bank  v.  Lames,  4  Abb.  Ap.  83,  99 ;  Bramhall  v.  Ferris,  14  N.  Y. 


SECT.  Yl.']  BROADWAY   NATIONAL   BANK   V.    ADAMS.  397 


BROADWAY  NATIONAL  BANK   v.   C.  W.   ADAMS,   and 

Another. 

In  the  Supresie  Judicial  Court,  Massachusetts,  November  17, 
18,  1881,  March  27,  Juxe  29,  1882. 

[Reported  in  133  Massachusetts  Reports,  170.] 

Morton,  C.  J.  The  object  of  this  bill  in  equity  is  to  reach  and 
apply  in  payment  of  the  plaintiff's  debt  due  from  the  defendant  Adams 
the  income  of  a  trust  fund  created  for  his  benefit  by  the  will  of  his 
brother.  The  eleventh  article  of  the  will  is  as  follows:  "  I  give  the 
sum  of  seventj'-five  thousand  dollars  to  my  said  executors  and  the 
survivors  or  survivor  of  them,  in  trust  to  invest  the  same  ui  such  man- 
ner as  to  them  may  seem  prudent,  and  to  pay  the  net  income  thereof, 
semi-annually,  to  my  said  brother  Charles  W.  Adams,  during  his  natu- 
ral life,  such  payments  to  be  made  to  him  personally  when  convenient, 
otherwise,  upon  his  order  or  receipt  in  writing  ;  in  either  case  free  from 
the  interference  or  control  of  his  creditors,  my  intention  being  that  the 
use  of  said  income  shall  not  be  anticipated  by  assignment.  At  the 
decease  of  my  said  brother  Charles,  my  will  is  that  the  net  income  of 
said  seventy-five  thousand  dollars  shall  be  paid  to  his  present  wife,  in 
case  she  survives  him,  for  the  benefit  of  herself  and  all  the  children  of 
said  Charles,  in  equal  proportions,  in  the  manner  and  upon  the  condi- 
tions the  same  as  herein  directed  to  be  paid  him  during  his  life,  so 
long  as  she  shall  remain  single.  And  my  will  is,  that,  after  the  de- 
cease of  said  Charles  and  the  decease  or  second  marriage  of  his  said 
wife,  the  said  seventy-five  thousand  dollars,  togelher  with  any  accrued 
interest  or  income  thereon  which  may  remain  unpaid,  as  herein  above 
directed,  shall  be  divided  equally  among  all  the  children  of  my  said 
brother  Charles,  by  any  and  all  his  wives,  and  the  representatives  of 
any  deceased  child  or  cliildrcn  l)y  right  of  reprosontation." 

There  is  no  room  for  doubt  as  to  the  intention  of  (he  testator.  It  is 
clear  that,  if  the  trustee  was  to  pay  the  income  to  the  plaintitf  under 
an  order  of  the  court,  it  would  be  m  direct  violation  of  the  intention  of 
the  testator  and  of  the  provisions  of  his  will.     The  court  will  notcom- 

41,  44  ;  Dirk  v.  ritclifonl,  1  I)ev.  &  B.  Eq.  480;  B-ink  v.  Forney.  2  Irod.  Eq.  181,  184  : 
Mebaiie  v.  Mcl.aiie,  4  Ired.  Kq  l.'ll  ;  Vnro  v.  I'aco,  73  N.  Ca  119,  Hol.lis  r.  Sniilli, 
15  Oh.  St.  4rj;  Walliice  i:  Smith,  2  Handy,  7'J  ,  TillinKlia.'it  r.  IJradfnrd,  5  U.  I. 
20.5,  Ilonth  V.  Hishop,  4  Wuh  Kq  40,  Wylio  v  Whito.  10  Rich  Eq.  294;  Nickell 
f  Flamlly,  10  Cr.it  :iW  {srmbk) ,  Bridgo  v.  Ward,  ;15  Wis.  687,  690;  Ilarri.s  r.  .Iiidd, 
3  Hawaiian,  421  Armrd. 

See  alMo  tho  achnirable  discuHHion  of  tliiH  i|UC8tion  in  Gray,  Restraints  on  Ali(Mia- 
tion,  §§  l."U-277  a. 

The  caxos  ronlra  will  bo  found  in/ni,  p.  400,  n.  2  In  tho  note  juHt  roferrcd  to,  as 
well  nn  in  this  note,  the  citations  include  not  only  bankruptcy  cases,  but  alHo  thrwo 
invcdvinf;  the  rights  of  crcditdrs  proceeding  by  bills  for  oi]uitablo  nxorutioii,  and  cases 
illustrating  the  rextui  r/ue  trust's  right  of  voluntary  alicualiun,  u  common  principle 
running  through  them  all.  —  Ed. 


398  BROADWAY  NATIONAL  BANK  V.   ADAMS.  [cHAP.  III. 

pel  the  trustee  thus  to  do  what  the  will  forbids  him  to  do,  unless  the 
provisions  and  intention  of  the  testator  are  unlawful. 

The  question  Avhether  the  founder  of  a  trust  can  secure  the  income 
of  it  to  the  object  of  his  bounty,  by  providing  that  it  shall  not  be  alien- 
able by  him  or  be  subject  to  be  taken  by  his  creditors,  has  not  been 
directly  adjudicated  in  this  Commonwealth.  The  tendency  of  our  de- 
cisions, however,  has  been  in  favor  of  such  a  power  in  the  founder.* 

It  is  true  that  the  rule  of  the  common  law  is,  that  a  man  cannot 
attach  to  a  grant  or  transfer  of  property,  otherwise  absolute,  the  con- 
dition that  it  shall  not  be  alienated  ;  such  condition  being  repugnant 
to  the  nature  of  the  estate  granted.^ 

Lord  Coke  gives  as  the  reason  of  the  rule,  that  "it  is  absurd  and 
repugnant  to  reason  that  he,  that  hath  no  possibility  to  have  the  land 
revert  to  him,  should  restrain  his  feoffee  in  fee  simple  of  all  his  power 
to  alien,"  and  that  this  is  "  against  the  height  and  puritie  of  a  fee 
simple."  By  such  a  condition,  the  grantor  undertakes  to  deprive  the 
property  in  the  hands  of  the  grantee  of  one  of  its  legal  incidents  and 
attributes,  namely,  its  alienability,  which  is  deemed  to  be  against  public 
policy.  But  the  reasons  of  the  rule  do  not  apply  in  the  case  of  a  trans- 
fer of  property  in  trust.  By  the  creation  of  a  trust  like  the  one  before 
us,  the  trust  property  passes  to  the  trustee  with  all  its  incidents  and 
attributes  unimpaired.  He  takes  the  whole  legal  title  to  the  property, 
wnth  the  power  of  alienation  ;  the  cestui  que  trust  takes  the  whole  legal 
title  to  the  accrued  income  at  the  moment  it  is  paid  over  to  him. 
Neither  the  principal  nor  the  income  is  at  any  time  inalienable. 

The  question  whether  the  rule  of  the  common  law  should  be  applied 
to  equitable  life  estates  created  by  will  or  deed,  has  been  the  subject 
of  conflicting  adjudications  by  different  courts,  as  is  fully  shown  in 
the  able  and  exhaustive  arguments  of  the  counsel  in  this  case.  As 
Is  stated  in  Sparhawk  v.  Cloon,^  from  the  time  of  Lord  Eldon  the 
rule  has  prevailed  in  the  English  Court  of  Chancery,  to  the  extent  of 
holding  that  when  the  income  of  a  trust  estate  is  given  to  any  person 
(other  than  a  married  woman)  for  life,  the  equitable  estate  for  life  is 
alienable  by,  and  liable  in  equity  to  the  debts  of,  the  cestui  que  trust, 
and  that  this  quality  is  so  inseparable  from  the  estate  that  no  provision, 
however  express,  which  does  not  operate  as  a  cessor  or  limitation  of  the 
estate  itself,  can  protect  it  from  his  debts.*     Brandon  v.  Robinson. 

The  English  rule  has  been  adopted  in  several  of  the  courts  of  this 
country.^ 

Other  courts  have  rejected  it,  and  have  held  that  the  founder  of  a 

i  Braman  v.  Stiles,  2  Pick.  460 ;  Perkins  v.  Hays,  3  Gray,  405  ;  Russell  v.  Grinnell, 
105  Mass.  425;  Hall  v  Williams,  120  Mass.  344;  Sparhawk  v.  Cloon,  125  Mass.  263. 

2  Co.  Lit.  223  a  ;  Blackstone  Bank  v.  Davis,  21  Pick.  42. 

8  125  Mass.  263. 

♦  Green  v.  Spicer,  1  R.  &  My.  395 ;  Rochford  v.  Hackman,  9  Hare,  475  ;  Trappes  v, 
Meredith,  9  Eq.  229 ;  Snowdon  v.  Dales,  6  Sim.  524 ;  Rippon  v.  Norton,  2  Beav.  63. 

5  Tillinghast  v.  Bradford,  5  R.  L  205 ;  Heath  v.  Bishop,  4  Rich.  Eq.  46 ;  Dick  v. 
PitcMord,  1  Dev.  &  Bat.  Eq.  480;  Mebane  v.  Mebane,  4  Ired.  Eq.  131, 


SECT.  YI.]  BROADWAY  NATIONAL  BANK   V.   ADAMS.  399 

trust  may  secure  the  benefit  of  it  to  the  object  of  his  bounty,  by  pro- 
viding that  the  income  shall  not  be  alienable  by  anticipation,  nor  sub- 
ject to  be  taken  for  his  debts.^ 

The  precise  point  involved  in  the  case  at  bar  has  not  been  adju- 
dicated in  this  Commonwealth  ;  but  the  decisions  of  this  court  which  we 
have  before  cited  recognize  the  principle,  that,  if  the  intention  of  the 
founder  of  a  trust,  like  the  one  before  us,  is  to  give  to  the  equitable 
life  tenant  a  qualified  and  limited,  and  not  an  absolute,  estate  in  the 
income,  such  life  tenant  cannot  alienate  it  by  anticipation,  and  his 
creditors  cannot  reach  it  at  law  or  in  equity.  It  seems  to  us  that  this 
principle  extends  to  and  covers  the  case  at  bar.  The  founder  of  this 
trust  was  the  absolute  owner  of  his  property.  He  had  the  entire  right 
to  dispose  of  it,  either  by  an  absolute  gift  to  his. brother,  or  by  a  gift 
with  such  restrictions  or  limitations,  not  repugnant  to  law,  as  he  saw 
fit  to  impose.  His  clear  intention,  as  shown  in  his  will,  was  not  to  give 
his  brother  an  absolute  right  to  the  income  which  might  hereafter  ac- 
crue upon  the  trust  fund,  with  the  power  of  alienating  it  in  advance, 
but  only  the  right  to  receive  semiannually  the  income  of  the  fund, 
which  upon  its  payment  to  him,  and  not  before,  was  to  become  his 
absolute  property.  His  intentions  ought  to  be  carried  out,  unless  they 
are  against  public  policy.  There  is  nothing  in  the  nature  or  tenure  of 
the  estate  given  to  the  cestui  que  trust  which  should  prevent  this.  The 
power  of  alienating  in  advance  is  not  a  necessary  attribute  or  incident 
of  such  an  estate  or  interest,  so  that  the  restraint  of  such  alienation 
would  introduce  repugnant  or  inconsistent  elements. 

We  are  not  able  to  see  that  it  would  violate  any  principles  of  sound 
public  policy  to  permit  a  testator  to  give  to  the  object  of  his  bounty 
such  a  qualified  interest  in  the  income  of  a  trust  fund,  and  tluis  provide 
against  the  improvidence  or  misfortune  of  tlie  Ijoneficiar}'.  The  only 
ground  upon  which  it  can  be  held  to  be  against  public  policy  is,  that  it 
defrauds  the  creditors  of  the  Ijeneficiary. 

It  is  argued  that  investing  a  man  with  ai)parent  wealth  tends  to  mis- 
lead creditors,  and  to  induce  them  to  give  him  credit.  The  answer  is, 
that  crcclitors  have  no  right  to  rely  upon  property  thus  held,  and  to 
give  him  credit  upon  the  i)asis  of  an  estate  whicli,  liy  the  instriiuipnt 
creating  it,  is  declared  to  be  inalienable  by  him,  and  not  lial)le  for  his 
debts.  By  the  exercise  of  proper  diligence  they  can  ascertain  the  na- 
ture and  extent  of  his  estate,  es|)ecially  in  this  C'onimotiwcalth,  wliere 
all  wills  and  most  deeds  are  s])n'ad  upon  tlie  pul)lic  records.  There  is 
the  same  danger  of  tlieir  being  misled  by  false  appearances,  mikI  in- 
duced to  give  credit  to  the  equitable  life  tenant  when  the  will  or  deed 
of  trust  provides  for  a  cesser  or  limitation  over,  in  case  of  an  attempted 
alienation,  or  of  bankruptey  or  attachment,  and  the  argumenl  would 
lead  to  the  conclusion  that  the  Kuglish  rule  is  e(pially  in  violation  of 

1  IIoMxliip  r.  I'atUrr.son,  7  W.'itts.  .'>47  ;  Shniikliind'H  yNjijicnl,  17  IVnn.  St.  113;  l{ifo 
V.  Oevcr,  5'J  I'piin.  St.  393;  White  v.  Wliit.,-,  30  Vt.  338  ;  I'opof.  KllioM,  8  H.  MnuSG; 
Nichols  V.  Eaton,  91  U.  S.  716 ;  Hydo  v.  Woods,  94  U.  S.  523. 


400  BROADWAY   NATIONAL   BANK   V,   ADAMS.  [CIIAP.  III. 

public  policy.  We  do  not  soc  why  the  founder  of  a  trust  may  not 
directly  provide  that  his  property  shall  go  to  his  beneficiary  with  tiic 
ret^triction  that  it  shall  not  be  alienable  by  anticipation,  and  that  his 
creditors  shall  not  have  the  right  to  attach  it  in  advance,  instead  of 
indirectly  reaching  the  same  result  by  a  i)rovision  for  a  cesser  or  a 
limitation  over,  or  by  giving  his  trustees  a  discretion  as  to  paying  it. 
He  has  the  entire  jus  disj^onendi,  which  imports  that  he  may  give  it 
absolutely,  or  may  impose  any  restrictions  or  fetters  not  repugnant  to 
the  nature  of  the  estate  which  he  gives.  Under  our  system,  creditors 
may  reach  all  the  property  of  the  debtor  not  exempted  by  law,  but  they 
cannot  enlarge  the  gift  of  the  founder  of  a  trust,  and  take  more  than 
he  has  given. 

The  rule  of  public  policy  which  subjects  a  debtor's  property  to  the 
payment  of  his  debts,  does  not  subject  the  property  of  a  donor  to  the 
debts  of  his  beneficiary,  and  does  not  give  the  creditor  a  right  to  com- 
plain that,  in  the  exercise  of  his  absolute  right  of  disposition,  the  donor 
has  not  seen  fit  to  give  the  property  to  the  creditor,  but  has  left  it  out 
of  his  reach. 

Whether  a  man  can  settle  his  owu  property  in  trust  for  his  own 
benefit,  so  as  to  exempt  the  income  from  alienation  by  him  or  attach- 
ment in  advance  by  his  creditors,  is  a  different  question,  whicli  we  are 
not  called  upon  to  consider  in  this  case.^  But  vve  are  of  opinion  that 
any  other  person,  having  the  entire  right  to  dispose  of  his  property, 
may  settle  it  in  trust  in  favor  of  a  beneficiary,  and  may  provide 
that  it  shall  not  be  alienated  by  him  by  anticipation,  and  shall  not 
be  subject  to  be  seized  by  his  creditors  in  advance  of  its  payment  to 
him. 

It  follows,  that,  under  the  provisions  of  the  will  which  we  are  con- 
sidering, the  income  of  the  trust  fund  created  for  the  benefit  of  the 
defendant  Adams  cannot  be  reached  by  attachment,  either  at  law  or  in 
equity,  before  it  is  paid  to  him.  Bill  dismissed.^ 

1  This  question  has  been  answered  in  the  negative.  Warner  v.  Rice,  66  Md.  436  ; 
Pacific  Bank  i-.  Windham,  133  Mass.  175;  Jackson  r.  Van  Zedlitz,  136  Mass.  342 ; 
McIJvaine  v.  Smith,  42  Mo.  45  ;  Lackland  v.  Smith,  5  Mo.  Ap.  153  ;  Lampert  ik  Hay- 
del,  96  Mo.  439  (semhle) ;  Mackason's  App.,  42  Pa.  330;  Andress  v.  Lewis,  17  W.  N. 
(Pa.)  270  ;  Lewis  v.  Miller,  22  W.  N.  (Pa.)  94 ;  Ghormley  v.  Smith,  139  Pa.  584.  —Ed. 

2  Nichols  1-.  Eaton,  91  U.  S.  711  (semhle);  Hyde  v.  Woods,  94  U.  S.  523  (semhle, 
bnt  see  Nichols  v.  Levy,  5  Wall.  433,  441)  ;  Steib  v.  Whitehead,  111  111.  247  ;  Spindle 
V.  Shreve,  111  U.  S.  542,  4  Fed.  Rep.  136  (ba.sed  on  an  Illinois  statute)  ;  Roberts?;. 
Stevens,  84  Me.  325;  Smith  v.  Towers,  69  Md.  77  (Alvey,  C.  J.,  and  Bryan,  J.,  dis- 
senting) ;  Braman  v.  Stiles,  2  Pick.  460  (semhle) ;  Billings  v.  Marsh,  153  Mass.  311 ; 
Leigh  V.  Harrison  (Miss.  1892),  11  S.  R.  604 ;  Lampert  v.  Haydel,  96  Mo.  439  ;  Par- 
tridge V.  Cavender,  96  Mo.  452 ;  (compare  Bank  of  Commerce  v.  Chambers,  96  Mo. 
459  ;)  Fisher  v.  Taylor,  2  Rawle,  33  ;  Vaux  v.  Parke,  7  Watts  &  S.  19  ;  Norris  v.  John- 
ston, 5  Barr,  287  ;  Eyrick  i-.  Iletrick,  13  Pa.  488;  Shankland's  App.,  47  Pa.  113  ;  Rife 
V.  Geyer,  59  Pa.  393  ;  Keyser  v.  Mitchell,  67  Pa.  473  ;  Overman's  App.,  88  I'a.  276 ; 
Thacicarat'.  Mintzer,  100  Pa.  151  ;  Guardians  v.  Mintzer,  16  Phila.  449  ;  Eborly's  App., 
HO  Pa.  95;  Ghormley  v.  Smith,  139  Pa.  584;  Jourolonion  i'.  Mas.scngill,  86  Tenn. 
81  (overruling  Turley  v.  Massengill,  7  Lea,  353;  Hooberry  v.  Harding,  10  Lea,  392); 


SECT.  VI.]  IN   EE  BULLOCK.  401 


In  re  bullock. 

GOOD  V.  LICKORISH. 

In  Chancery,  before  Kekewich,  J.,  March  17,  21,  1891. 

[Reported  in  60  Law  Journal  Reports,  Chancery,  341.] 

By  the  -will  and  codicil  of  Edwiu  Bullock  (who  died  on  the  14th  of 
February,  1870),  all  the  real  and  personal  estate  of  the  testator  were 
vested  in  the  plaintiffs  Charles  Patten  Good  and  Henry  "Williams,  and 
the  testator's  widow  Mary  Bullock,  his  executors  and  trustees,  in  trust 
for  the  testator's  children,  and  the  issue  born  in  his  lifetime  of  Mary 
Bullock,  as  she  should  by  deed  or  will  appoint,  and,  failing  such  ap- 
pointment, and  so  far  as  the  same  should  not  extend,  in  trust  for  those 
of  his  six  children  who  should  be  living  at  her  death,  and  the  issue  of 
such  as  should  be  then  dead  leaving  issue. 

Mary  Bullock,  by  her  will  dated  the  29th  of  May,  1883,  directed  and 
appointed  as  follows  :  — 

"  I\Iy  late  husband's  trustees  or  trustee  shall  stand  possessed  of 
15,000Z.,  further  part  of  the  said  net  proceeds,  upon  trust  to  invest  the 
same  in  some  or  one  of  the  modes  of  investment  by  law  authorized  for 
the  investment  of  trust  funds,  and  to  pay  the  income  of  such  invest- 
ments to  the  said  Theodore  Walter  "William  Bullock,  during  his  life  or 
until  he  shall  become  a  bankrupt  or  a  liquidating  debtor,  or  cease  to  be 
entitled  to  receive  such  income,  or  any  part  thereof,  for  his  own  per- 
sonal use  or  benefit,  by  any  means  or  for  any  purpose.  And  in  the 
event  of,  and  upon  the  said  T.  W.  W.  Bullock  becoming  a  bankrupt  or 
a  liquidating  debtor,  or  ceasing  to  be  entitled  to  receive  tiie  said  income, 
or  any  part  tliereof,  for  Iiis  own  personal  use  or  benefit  by  any  means 
or  for  any  purpose,  to  pay  to  him  or  apply  for  his  benefit,  during  the 
remainder  of  his  life,  either  the  whole,  or  so  much,  and  so  much  only 
of  the  said  income,  as  my  late  husband's  trustees  or  trustee  nhall  in 
their  or  his  uncontiollt'd  discretion  think  fit,  and,  subject  to  the  afore- 
said interest  Iieri'inlicfore  appointed  in  favor  of  the  said  T.  W.  W.  Bul- 
lock, my  late  husband's  trustees  or  trustee  sliall  hold  the  said  15,000/., 
and  tiie  investments  and  income  (including  any  accumulations  of  in- 
come) tliereof,  in  trust  for  the  child,  if  only  one,  or  all  the  ciiildren 

White  I'.  Wliito,  ."iO  Vt.  338  (nemblr) ;  RninoH  v.  Dow,  .59  Vt.  530;  Garlniul  r.  darlaud, 
87  Va.  758  Accon/. 

See  mipra,  p.  307,  ii.  1,  last  parafjrapli.  —  Et>. 

In  a  few  jiiriHilictioiiH,  e.  p.,  f '."ilifuriiia,  Kan.saH,  Micliipan,  MinnoHota,  New  .TcrHCy, 
New  York,  an<l  ToiiiioHee,  tlic!  riglitH  of  crfditorH  of  tlu;  nstui  rpie  trust  are  rff^nljilod  by 
Htatiitc,  tlie  crf'ilitorH  liciiij;  cif  lier  cxcliulfd  altopcllier,  or  allowcil  to  roacli  only  (lie  sur- 
pln.H  income,  that  may  remain  after  providing  for  a  Hiiitalile  Hnpjtort  of  tlio  nului  que 
tntfit.  See  (Iray,  IJcMtraintH  on  Alien.itionH,  §§  2RG-200,  iiml  also  Cnniminps  v.  Corey, 
5«  Mich.  403  ;  IlardenliurKh  i;.  Hlair,  30  X.  J.  Kf|.  045  ;  Tolle.s  v.  Wood.  <J'.t  N.  Y.  616; 
Kilroy  i;.  Wood,  49  Hun,  036;  Iloyt's  Estate,  12  N.  Y.  Civ.  I'r.  208.  — Ed. 

26 


402  IN   RE   BULLOCK.  [CIIAP.  Ill 

equally  if  more  than  ouo,  boru  iu  my  lifetiine,  of  the  said  T.  W.  W. 
Bullock,  and  if  there  be  uo  such  child,  iu  trust  for  the  said  William 
Bullock,  INIary  Ilolyoake  Bullock,  Constance  Bullock,  and  Dorothy 
Marian  Good  as  tenants  in  common  in  equal  shares." 

The  testatrix  died  on  the  2;)th  of  December,  1886,  and  her  will,  and 
several  codicils  which  did  not  affect  the  above  appointment,  were 
proved  by  her  executors,  the  plaintiffs  Charles  Patten  Good  and  Henry 
"Williams,  on  the  15th  of  February,  1887. 

The  above-named  T.  W.  W.  Bullock  was  a  son  of  the  testator  and 
testatrix,  and  W.  Bullock,  M.  H.  Bullock,  and  C.  Bullock,  were  the 
children  of  E.  L.  Bullock,  a  son  of  the  testator  and  testatrix,  who  died 
iu  the  lifetime  of  the  latter,  and  E.  M.  Good  was  a  child  of  L.  M.  Good, 
a  daughter  of  the  testator  and  testatrix. 

The  trustees  invested  the  15,000/.  in  the  purchase  of  12,011?.  London 
and  North-W^estern  Railway  4  per  cent  perpetual  debenture  stock,  the 
interest  on  which  was  payable  on  the  15th  of  January  and  15th  of  July, 
and  the  interest  was  paid  to  T.  W.  W.  Bullock  up  to  and  including  the 
16th  of  July,  1890. 

On  the  23rd  of  August,  1890,  the  trustees  received  notice  of  a 
memorandum  of  charge  dated  the  30th  of  January,  1889,  from  T.  W.  W. 
Bullock  to  Lickorish  &  Bellord,  solicitors,  on  all  his  interest  under  the 
will  of  the  testatrix  to  secure  money  of  which  about  500^.  was  stated 
to  be  owing. 

On  the  23rd  of  October,  1890,  a  receiving  order  was  made  against 
T.  W.  W.  Bullock,  and  on  the  14th  of  November,  1890,  the  trustees 
received  a  notice  that  the  official  receiver  claimed  the  12,01  IZ.  stock 
as  trustee  in  the  bankruptcy  of  T.  W.  W.  Bullock  ;  he  subsequently 
claimed  the  proportion  of  interest  due  at  the  date  of  the  receiving  order ; 
but  the  claims  of  the  trustee  were  afterwards  withdrawn.  The  trustees 
took  out  an  originating  summons,  asking  (inter  alia)  whether  the  plain- 
tiffs properly  might  during  the  life  of  T.  W.  "W.  Bullock  apply  the 
whole,  or  any,  and  what  part,  of  the  income  of  the  trust  fund  in  pro- 
viding in  such  manner  as  they  might  from  time  to  time  think  fit  for  the 
past  and  future  lodging,  board,  clothing,  maintenance,  and  support  of 
T.  W.  W.  Bullock,  and  the  payment  of  sundry  legal  expenses  incurred 
by  him  or  on  his  behalf  in  and  since  July,  1890,  or  how  the  said  income 
ought  to  be  dealt  with  by  the  plaintiffs. 

This  summons  was  adjourned  into  Court. 

BaicUns,  for  the  plaintiffs. 

2faidlow,  for  the  assignees  of  T.  W.  W.  Bullock. 
Wanninrfton,  Q.C.,  and  Marcy^  for  William  Bidlock  and  Constance 
Emily  Whitcombe  (formerly  Constance  P^mily  Bullock)  claiming  under 
the  gift  over. 

Asldon  Cross,  for  the  other  persons  entitled  under  the  gift  over,  who 
were  not  hostile  to  the  bankrupt.^ 

1  The  arguments  of  counsel  are  omitted. 


SECT.  YI.]  IX    RE   BULLOCK.  403 

Kekewich,  J.  (on  March  21). — At  the  conclusion  of  the  arguments 
on  this  point,  I  held  that  the  particular  assignee  represented  by  Mr. 
Maidlow  was  not  entitled  to  any  part  of  the  income  in  which  Theodore 
"Walter  William  Bullock  takes  an  interest  under  the  will.  He  only 
claimed  that  which  accrued  before  notice  of  his  assignment  was  given 
to  the  trustees  of  the  will,  and  that  on  the  ground  that  until  such 
notice  was  given  the  assignment  was  not  perfect,  and  Mr.  Bullock 
could  not  until  then  be  said  to  have  ceased  to  be  entitled  to  receive  the 
income  for  his  own  personal  use  or  benefit.  I  held  that,  although  for 
some  and  important  purposes  the  assignment  might  fairly  be  said  to  be 
not  perfect  until  notice  given,  yet,  as  between  assignor  and  assignee, 
it  was  perfect  as  fi'om  its  date,  and  operated  a  cesser  of  the  assignor's 
title  to  receive  the. income.  I  advert  to  this  now  because,  with  refer- 
ence to  the  point  remaining  to  be  decided,  it  is  important  to  observe 
that  the  particular  assignee  has  no  interest.  It  is  also  important  to 
observe  that  the  general  assignee  —  that  is,  the  trustee  in  bankruptcy 
—  makes  no  claim.  He  has  abstained  from  doing  so  deliberately,  and 
I  have  no  doubt  wisely.  He  could  not,  so  far  as  I  can  see,  have  put 
forward  any  tenable  argument  in  support  of  a  claim  if  made.  The 
question  is  therefore  raised  as  between  Mr.  Bullock  and  those  entitled 
under  the  gift  over  —  or  rather  such  of  them  as  claim  adversely 
to  him,  for  they  do  not  all  act  together  or  take  the  same  view. 
Mr.  AVarniington's  argument  for  them  was  that  the  language  of  the 
will  onl}'  empowers  the  trustees  to  pay  the  income  to  INIr.  Bullock  or  to 
apply  it  for  his  benefit,  and  that  neither  of  these  things  can  be  done. 
As  regards  payment,  reliance  was  placed  on  the  decision  in  In  re  Cole- 
man ;  Henry  v.  Strong,  and  my  own  judgment  in  In  re  Neil ;  Hem- 
ming V.  Neil,*  to  which,  on  reflection,  I  adliere  ;  and  it  was  said  that  to 
pay  income  to  Mr.  Bullock  would  be  to  make  a  payment  in  derogation 
of  the  overriding  title  of  the  trustee  in  liankruptcy,  and  therefore  a 
wrongful  payment,  whicHi  would  be  no  discharge  to  the  trustees  of  the 
will,  and  would  render  tliem  accountable  to  the  trustee  in  bankruptcy. 
Tliat  argument  is,  I  tiiink,  well  founded.  As  regards  a|»plic'ntions  for 
the  lienelit  of  Mr.  Bullock,  the  argument  took  tliis  form  :  It  was  said 
tiiat  where  the  Court  has  upheld  a  discretionary  trust  for  application, 
arising  on  Ijankruptcy,  or  tiie  equivalent  of  bankruptcj',  the  discretion 
has  been  exercisal)le  with  reference  to  wife  and  children  as  well  as  the 
bankrupt,  and  the  decisions  of  tiie  Court  have  procccdcil  on  the  impos- 
sibility of  (hitermining  beforehand  what,  if  anything,  the  trustees  would, 
in  the  exercise  of  their  discretion,  apply  for  the  benefit  of  the  baiikrupt 
as  distinguished  from  the  other  objects  of  their  power.  For  this,  refer- 
ence was  made  to  two  cases  as  examples  of  a  class,  —  Oodden  v.  Crow- 
hurst''  and  Kearsley  v.  Woodcock."  The  language  of  the  judgments, 
and  especially  that  of  Vice-Chancellor  Shad  well  in  (Jodilcn  c.  Crow- 
hurst,*  countenances  the  argument,  but  the  precise  point  which  I  havo 

1  f.2  L.  T.  Rep.  649.  '  10  Sim.  642. 

»  3  Hare,  185.  «  10  Sim.  642. 


40-4  IN   KE   BULLOCK.  [CIIAP.  III. 

now  to  consider  was  not  before  the  Court  in  either  case,  and  I  cannot 
think  that  either  Judge  intended  to  decide  it.  I  can  see  no  reason  on 
l)riu<.'ii)le  for  defeating  the  obvious  intention  of  the  testatrix.  That 
obvious  intention  was  to  enable  the  trustees,  in  the  event  of  ]Mr.  Bul- 
lock's bankruptcy,  to  apply  for  his  benefit  the  income,  or  an  adequate 
part  of  the  income,  which  he  thereupon  ceased  to  be  entitled  to  receive. 
It  is  clear,  and  the  trustee  in  bankruptcy  has  practically  admitted,  that 
he  can  take  no  interest  in  income  thus  applied  ;  and  it  is  diflicult  to  see 
how  those  entitled  under  the  gift  over  can  successfully  claim  as  coming 
to  them  what,  if  it  does  not  come  to  them,  would  not  go  to  the  trustee 
in  bankruptcy.  The  argument  in  opposition  to  their  claim  is  strongly 
supported  by  Chambers  v.  Smith.^  It  is  a  Scotch  case,  but  the  Scotch 
law  was  expressly  stated  to  be  on  this  point  in  no  way  different  from 
that  of  England.  It  was  there  held  that  trustees  possessing  a  dis- 
cretionary power,  such  as  the  trustees  of  this  will  possess,  might  exer- 
cise it  in  favor  of  the  beneficiaries  occupying  Mr.  Bullock's  position, 
notwithstanding  arrestment  by  judgment  creditors.  The  law  is  ex- 
pounded by  the  several  learned  Lords  who  gave  their  opinions  to  the 
House,  but  it  will  suffice  to  refer  to  those  of  Lord  Chancellor  Ilather- 
ley  and  Lord  Blackburn.  There  is  a  passage  in  the  Lord  Chancellor's 
judgment '^  which  seems  to  me  directly  applicable  to  the  case  in  hand. 
It  may  be  thus  applied  :  Mr.  Bullock  has  no  control  over  the  fund  when 
the  trustees  resolve  to  exercise  their  discretionary  power.  He  cannot, 
and  no  one  claiming  through  him  can,  make  a  claim  against  the  trus- 
tees for  payment.  It  would  be  a  sufficient  answer  to  any  such  claim 
to  say,  "  We  have  postponed  such  payment  to  you  personally,  and  in- 
tend ourselves  to  apply  the  money  for  your  behoof."  And  on  page 
807  he  says,  "  If  I  am  correct  in  holding  as  I  do  that  the  trust  powers 
could  not  be  destroyed  by  the  objects  of  them  becoming  indebted, 
which,  indeed,  seems  the  time  at  which  the  testator  would  have  desired 
them  to  be  brought  into  action,  then  the  trustees  are  not  innovating, 
but  only  exercising  their  rights  as  conferred  upon  them  by  their  truster 
at  their  own  discretion."  On  page  817  Lord  Blackburn  notices  the 
great  and  fundamental  difference  between  a  gift  to  one,  either  direct  or 
through  the  medium  of  trustees,  who  are  mere  conduit-pipes  to  convey 
the  gift  to  the  beneficiary,  and  a  gift  subject  to  a  power  reserved  to 
trustees,  to  be  exercised  paramount  to  the  beneficiary  and  in  his  des- 
pite ;  and  adds,  "  I  think  the  arrestment  fixes  the  date  at  which  it  is  to 
be  determined  whether  the  arresters  have  a  right  to  attach  the  fund, 
and  anything  that  is  subsequently  done  by  the  debtor,  or  by  those  who 
have  rights  against  the  debtor,  or  by  those  who  claim  under  him, 
comes  too  late  after  that."  In  other  words,  the  assignment  in  this 
case,  which  is  equivalent  to  the  arrestment  in  the  case  before  the 
House  of  Lords,  called  the  discretionary  power  of  the  trustees  into 
operation ;  and  it  would  be  a  contradiction  to  hold  that  the  power  la 
inoperative  just  when  it  was  intended  to  be  exercised.     What  the  trus- 

»  3  App.  Cas.  795.  2  3  App.  Cas.  at  p.  804. 


SECT.  VI.]  IN   RE   BULLOCK.  405 

tees,  in  the  exercise  of  their  discretion,  do  not  from  time  to  time  think 
fit  to  apply  for  the  benefit  of  Mr.  Bullock  goes,  by  the  words  of  the 
■will,  to  those  entitled  under  the  gift  over  ;  but  the}'  take  only  this  over- 
plus, and  cannot  claim  what  the  trustees  determine  to  apply.  I  was 
asked  by  the  trustees  to  define  the  limits  within  which  thej'  may  apply 
the  income  for  Mr.  Bullock's  benefit.  I  find  it  extremely  difficult  to  do 
this  in  the  abstract,  and  I  am  unwilling  to  fetter  the  trustees'  discre- 
tion, which  was  intended  to  be,  and  ought  to  be  construed  as,  large. 
I  could  not  refuse  to  determine  any  particular  question  submitted  by 
them  to  the  Court,  and  if  any  real  difficulty  occurs,  they  would  probably 
be  justified  in  asking  the  Court's  protection.  I  can  say  no  more  at 
present  than  that  they  certainly  may,  in  my  opinion,  spend  the  whole 
or  any  part  of  the  income  in  maintenance,  using  that  word  in  its  most 
general  and  widest  sense  ;  and  I  doubt  whether  I  was  right  in  saying  in 
the  course  of  the  argument  that  they  could  not  properly  pay  JMr.  Bul- 
lock's debts.  The  discretion  is  vested  in  them,  and  though,  as  already 
mentioned,  they  are  entitled  to  the  assistance  of  the  Court  if  a  case  of 
real  difficulty  occurs,  they  must  exercise  it ;  and  so  long  as  they  exer- 
cise it  honestly  —  that  is,  as  men  of  ordinary  business  habits  and  pru- 
dence, and  with  due  regard  to  all  the  circumstances  of  the  case  —  the 
Court  will  not  interfere  with  them.^ 

1  Where,  a.s  in  the  principal  case,  the  trust  is  to  apply,  as  distinguished  from  paying, 
such  portion  of  the  income  of  the  trust  fund  as  the  trustee  shall  think  fit,  for  the  sup- 
port of  A,  the  creditors  of  A  can  derive  no  benefit  from  the  trust.  Twopeny  v.  Pey- 
ton, 10  Sim.  487;  Chambers  v.  Smith,  3  App.  Cas.  795;  Gray  v.  Corbit,  4  Dei.  Ch, 
135;  Baker  v.  Brown,  146  Mass.  369;  Slattery  v.  Wason,  151  Mass.  266.  A  fortiori 
the  creditors  can  get  nothing,  where  the  trustee  has  au  option  to  exclude  A  altogether. 
Lord  V.  Bunn,  2  Y.  &  C.  C.  C.  98 ;  Holmes  v.  Penney,  3  K.  &  J.  90;  Davidson  v.  Kem- 
per, 79  Ky.  5 ;  Staub  u.  Williams,  5  Lea,  458.     See  also  Re  Lan<lon,  40  L.  J.  Ch.  370. 

If  the  trustee  is  to  apply  the  wliole  of  the  income  for  the  support  of  A,  the  beijuest 
18  treated  :i3  a  gift  out  and  out,  and  the  income,  wherever  Brandon  v.  Bobinsou  is 
followeil,  may  be  reached  i)y  A's  creditors.  Green  v.  Spicer,  1  B.  &  My.  395  ;  Snow- 
don  V.  Dales,  6  Sim.  524  ;  Younghusband  v.  Gisborne,  1  Coll.  400.  But  see  contra, 
Godden  v.  Crowhur.st,  10  Sim.  642  ;  Wetmore  j;.  Trnston,  51  N.  Y.  338. 

If  the  trust  is  fur  the  support  of  A  and  others,  for  exam})lo,  liis  wif(i,  or  his  family, 
the  rights  of  A's  creditors  vary  in  different  jurisdictions.  In  S(jmo  ca.ses  the  cucilitors 
have  been  held  entitled  to  the  whole  income,  except  a  proper  allowance  for  the  wife  or 
tlie  family.  Page  v.  Way,  3  Beav.  20;  Kearsley  v.  Woodcock,  3  Ilaro,  185;  Wallace  r. 
Anderson,  16  Beav.  533.  In  others  tlic  creditors  have  received  nothing  because  of  the 
impracticability  of  dividing  the  income.  Durant  v.  Ma.s8.  Co.,  2  Low.  575 ;  Hill  v. 
McKae,  27  Ala.  175;  B(dl  i-.  Watkins,  82  Ala.  512;  Tolland  Co.  v.  Underwood,  50 
Conn.  493;  Nickell  v.  Ilandley,  10  (Jrat.  336. 

If  the  trust  is  to  pai/  the  income  to  A,  although  for  liis  support,  the  creditors  if  not 
expresslv  fxcJudcil  can  reach  all  that  A  is  entitled  to  even  in  jurisdictions  where  s])end- 
thrift  triiHtH  arc  allowed.  Maynard  i>.  Cleaves,  149  Ma«s.  307  ;  Slattery  r.  Waaon,  151 
Ma88.  266,  268.  —  Ed. 


406  STITII   v.   L00KA13ILL.  [CIIAP.  III. 


SECTION  VII. 

By  Act  of  Creditors, 
{a)   Creditors  of  Trustee. 

N.   L.   STITH  V.   JACOB   LOOKABILL. 
In  the  Supreme  Court,  North  Carolina,  June  Term,  1874. 

[Reported  in  71  North  Carolina  Reports,  25.] 

Civil  action,  to  recover  possession  of  certain  real  estate  tried  at  the 
Spring  Term,  1874,  of  the  Superior  Court  of  Davidson  County,  before 
his  Honor,  Judge  Cloud. 

The  plaintiff  showed  title  from  the  State  to  one  J.  M.  Lisle  ;  then  a 
deed  from  Lisle  to  one  F.  M.  Camman  ;  then  an  original  attachment 
against  Camman,  which  was  duly  levied  on  the  premises,  and  after 
proper  proceedings  had  thereon,  a  final  judgment  in  said  attachment, 
and  a  ven.  ex.  issued  to  sell  the  land.  Plaintiff  further  showed  a  sale 
and  that  A.  B.  Stith  became  the  purchaser,  who  dying  j^ndente  lite, 
willed  the  same  to  the  plaintiff ;  also,  that  the  defendant  was  in  pos- 
session. 

Here,  the  plaintiff  resting  his  case,  the  defendant  moved  the  Court  to 
non-suit  the  plaintiff,  on  the  ground  that  Camman  did  not  acquire  such 
an  interest  as  was  the  subject  of  attachment,  levy,  and  sale  under  ex- 
ecution, —  the  defendant  stating  that  if  his  Honor  should  overrule  the 
motion,  he  had  evidence  to  offer  showing  title  in  himself. 

His  Honor  sustained  the  motion  and  non-suited  the  plaintiff.  From 
this  judgment  the  plaintiff  appealed. 

The  provisions  of  the  deed  to  Camman  are  sufficiently  set  forth  in 
the  opinion  of  the  Chief  Justice. 

Bailey.,  for  the  plaintiff. 

Billard  &  Gilmer.,  with  whom  was  e/l  31.  McCorkle,  for  defendant.^ 

Pearson,  C.  J.  Upon  the  motion  to  non-suit,  the  only  question  was, 
"  had  Camman  such  an  estate  as  was  subject  to  sale  under  execution  by 
his  creditors?  "  On  this  depended  the  right  of  the  plaintiff,  who  was  the 
purchaser,  to  maintain  an  action  against  the  defendant,  who  for  the  pur- 
poses of  the  motion  stands  as  a  wrong-doer,  without  connection,  either 
as  assignee  or  agent,  with  the  cestui  que  trusts  for  whom  Camman  is 
assumed  to  have  held  the  legal  estate. 

Mr.  Gilmer  in  a  well-considered  argument  admitted  the  general  posi- 
tions taken  by  Mr.  Bailey,  in  respect  to  "  uses  and  trusts,"  to-wit: 

i  The  arguments  of  counsel  are  omitted.  —  Ed. 


SECT.  VII.]  STITH   V.   LOOKABILL.  407 

1.  This  case  did  not  come  within  the  operation  of  Stat.  27th  Henry 
VIII.  So  the  legal  title  was  in  Camman,  subject  to  the  trust,  set  out  in 
the  deed  "  for  the  sole  and  exclusive  benefit  of  the  members  of  a  com- 
pany called  and  known  as  the  '  Conrad  Hill  Gold  and  Copper  Corn- 
pan}*,'"  their  successors  and  assigns  forever. 

2.  Camman,  in  the  Courts  of  law,  was  considered  to  be  the  owner 
of  the  land,  and  no  notice  was  taken  of  the  trust,  to  which  he  was 
subject. 

3.  Camman  had  power  to  assign  the  legal  estate  ;  and  it  could  be  sold 
under  an  execution  against  him,  the  purchaser  taking  subject  to  the 
trust,  and  notice  being  presumed. 

4.  Under  the  old  system  the  plaintiff  would  have  been  entitled  to 
judgment  on  a  demurrer  to  the  evidence. 

Mr.  Gilmer  then  "  proved  by  the  books  "  that  although  the  plaintiff 
was  in  a  Court  of  law  (under  the  old  system)  treated  as  the  absolute 
owner  of  the  estate,  still  being  a  trustee,  on  the  face  of  the  deed  b}' 
which  he  derives  title,  he  and  his  assignee,  whether  by  his  own  sake,  or 
that  of  the  sheriff,  is  subject  to  the  control  of  the  Courts  of  Equity,  by 
which  these  trusts  estates  were  upheld  and  treated,  as  the  real  ownership. 
See  the  reasoning  in  Blackmer  v,  Phillips,  67  N.  C.  340. 

The  trustee  or  his  assignee  will  be  enjoined  from  enforcing  his  mere 
legal  right  in  order  to  take  possession  of  the  land.  From  these  premises 
he  drew  the  conclusion  that  under  our  new  system,  the  Court  acting  both 
as  a  Court  of  Equity  and  a  Court  of  law,  the  assignee  of  the  trustee  by 
sale  on  execution  will  not  be  allowed  to  take  judgment  tor  the  recovery 
of  the  possession  of  the  land. 

The  argument  is  well  constructed,  but  it  fails  in  this :  under  the  old 
svstem  the  Court  of  Equity  only  interfered  b}'  injunction  to  prevent  the 
trustee  or  his  assignee  from  taking  possession  as  against  the  cestui  (jue 
trusts,  or  their  assignee  or  agent,  but  did  not  interfere  in  favor  of  a 
wrong-doer,  who  fails  to  connect  himself  in  any  way  with  the  cestui  que 
trusts.  Such  is  the  law  under  the  new  system.  In  our  case,  for  the 
purposes  of  the  motion  to  non-suit,  the  cestui  que  trusts  are  not  before 
the  Court,  and  the  defeii(huit  stands  as  a  wrong-doer,  withlioKliiig  the 
possession  from  the  plaintilf,  who  is  the  owner  of  the  legal  estate. 

If  Camman  had  l;rouglit  the  action,  the  defendant,  so  far  as,  for  the 
purposes  of  the  motion,  as  the  matter  now  stands,  would  not  have, 
under  the  old  system,  entitled  hirns(!lf  to  an  injunction  ;  noilher  can  he 
do  so  under  the;  new  system,  b}-  which  the  e(|iiiiy  of  the  case;  as  well  as 
the  law  is  administered  in  tiie  samc,/*''^?'/^///,  for  the  plain  reason  tli.it  ho 
stands  as  a  wrong-doer,  withholding  the  |)ossession  from  one  having  the 
legal  estate,  and  does  not  in  any  way  connect  himself  with  the  supposed 
cestui  que  trusts. 

There  is  error.     .Judgment  reversed  and  venire  de  norjo.^ 

Per  Curiam.  Venire  de  novo. 

*  The  assets  of  a  testator  cannot  he  taken  even  at  law  in  satisfaction  of  a  judgment 
against  the  executor.     Fnrr  v.  Newman,  4  T.  li.  621  ;  McLeod  v.  Drummond,  17  Ves. 


408  ^VIIIT^voRTII  v.  gaugain.  [ciiAr.  iil 


WHITWORTH   V.   GAUGAIN. 

!  In  Cuancery,  before  Sir  James  Wigram,  V.  C,  March,  25,  26, 
i  27,  28,  April  3,  1844. 

.  [Reported  in  3  Hare,  416.] 

ViCE-CiiANCELLOR.^  The  plaintiffs,  in  this  case,  are  equital)le  mort- 
gagees of  one  George  Cooke,  by  a  deposit  of  title-deeds  of  freehold 
estates,  aeeompauied  with  a  memorandum  in  writing,  explaining  that 
the  purpose  of  the  deposit  was  to  secure  a  then  existing  debt  and 
future  advances. 

To  explain  the  legal  effect  of  this  transaction  as  between  the  plain- 
tiffs the  mortgagees,  and  Cooke  the  mortgagor,  I  shall  content  myself 
with  quoting  tiie  words  of  the  Lord  Chancellor  of  Ireland,  in  the  case 
of  RoUeston  v.  Morton  :  ^  "  If  a  man  has  power  to  charge  certain  lands, 
and  agrees  to  charge  them,  in  equity  he  has  actually  charged  them ; 
and  a  court  of  equity  will  execute  the  charge."  No  one,  I  apprehend, 
could  seriously  contend  that  the  memorandum  in  writing  above  set  forth 
had  not  the  effect  of  charging  the  property  as  between  the  mortgagees 
and  the  mortgagor.  It  created  as  perfect  an  equitable  charge  as  in- 
tention and  act  can  possibly  create. 

The  defendants,  between  whom  and  the  plaintiffs  the  contest  in  the 
cause  exists,  are  judgment  creditors  of  George  Cooke,  w'hose  judgments 
were  entered  upon  after  the  mortgage  to  the  plaintiffs,  and  who  have 
since,  by  means  of  elegits,  obtained  actual  possession  of  the  lands  com- 
prised in  the  mortgage  ;  and  the"  question  between  them  is,  which  of 
the  two  is  in  equity  to  be  preferred  to  the  other  ?^     In  considering  that 

152,  168,  per  Lord  Eldon  ;  Kiuderley  v.  Jarvis,  22  Beav.  1,  23  ;  Gaskell  v.  Marshall,  1 
M.  &  Rob.  132  ;  Williams  t).  Fullerton,  20  Vt.  346.     See  "Whale  v.  Booth,  4  Dong.  36. 

There  are  decisions  also  that  a  creditor  of  a  trustee  canuot  even  at  law  reach  the  prop- 
erty of  the  cestui  que  trust.  Smith  v.  McCauu,  24  How.  398 ;  Baker  v.  Copenbarger,  15 
111.  103 ;  Elliott  V.  Armstrong,  2  Blackf.  198  (semble) ;  Houston  v.  Nowland,  7  Gill  & 
J.  480 ;  Bancroft  v.  Consen,  13  Ala.  50  {semble) ;  Ashunst  r.  Given,  5  Watts  &  S.  323 ; 
Wilhelm  v.  Fulmer,  6  Barr,  29G  ;  Shryock  v.  Waggoner,  28  Pa.  430 ;  Townslow  v. 
Barber,  27  Vt.  417  ;  Barber  r.  Chopin,  28  Vt.  413;  Hackett  v.  Callender,  32  Vt.  97; 
Hart  r.  Farmers'  Bank,  33  Vt.  252  ;  Abell  v.  Howe,  43  Vt.  403.  See  also  Warren  v. 
Ireland,  29  Me.  62;  Chickering  v.  Lovejoy,  13  Mass.  51 ;  Haynes  v.  Jones,  5  Met.  292. 

A  trustee  cannot  claim  a  homestead  right  in  trust  property.  Shepherd  v.  White, 
11  Tex.  346.     See  also  Re  Whitehead,  2  N.  B.  R.  599. 

The  creditor  of  a  feoffee  to  uses  miglit  satisfy  his  judgment  out  of  the  property  held 
in  use.     Y.  B.  14  Hen.  VIH.  f.  4,  pi.  5  ;  supra,  p.  284.  —  Ed. 

1  See  supra,  70  u.  1.  —  Ed. 

2  1  Dr  &  War.  195. 

8  The  bill,  which  was  filod  on  the  17th  of  March,  1841,  charged  that  the  heredita- 
ments and  premises  comprised  in  the  said  title-deeds  (together  with  a  policy  of  insur- 
ance which  the  plaintiffs  also  held  as  a  further  security)  were  wholly  inadequate  to 
satisfy  the  sums  due  to  them  by  virtue  of  such  equitable  lien.  The  bill  prayed  that 
an  account  might  be  taken  of  what  was  due  to  the  plaintiffs  in  respect  of  their  equit- 
able lien  upon  the  said  deeds  and  writings,  and  that  they  might  be  declared  to  have  an 


SECT.  VII.]  WHITWORTH   V.  GAUGAIN.  409 

question  I  shall  here  repeat  what  I  have  on  more  than  one  occasion 
already  said  respecting  Lord  Cottenhani's  judgment  when  this  cause 
was  before  him  upon  motion,  namely,  that  I  am  satisfied  he  did  not 
intend,  by  what  he  said,  finally  to  decide  the  point  now  before  me. 
However  strong  the  leaning  of  his  mind  may  have  been  in  favor  of 
the  judgment  creditor,  he  not  only  did  not  intend  to  decide  it,  but 
intended  that  it  should  be  reserved.  And  I,  therefore,  consider  my- 
self not  only  at  liberty,  but  bound,  to  decide  the  cause  according  to 
my  own  understanding  of  the  law. 

Now,  if  the  question  be  not  decided  by  that  judgment,  I  have  cer- 
tainly a  very  strong  opinion  upon  it.  The  more  I  consider  the  case, 
the  more  satisfied  I  feel  that  I  stated  the  general  principle  correctly  in 
Langton  v.  Horton  when  I  said  that  a  creditor  might,  under  his  judg- 
ment, take  in  execution  all  that  belonged  to  his  debtor,  and  nothing 
more.  He  stands  in  the  place  of  his  debtor.  He  only  takes  the  prop- 
erty of  his  debtor,  subject  to  every  liability  under  which  the  debtor 
himself  held  it.  First,  take  the  case  of  an  ordinary  trust.  It  could 
not  for  a  moment  be  contended  that  this  court  would  not  protect  the 
interest  of  the  cestui  que  trust  against  the  judgment  creditor  of  the 
trustee.^     The  judgment  of  Lord  Cotteuham  in  Newlands  v.  Faynter  ^ 

equitable  mortgage  upon  the  hereditaments  and  premises,  and  to  be  entitled  to  priority 
over  the  said  elegits  and  judgments  of  Mayor  and  Pelle  ;  tliat  the  hereditaments  and 
premises  included  in  the  plaintiffs'  said  equitable  mortgage  (and  the  said  j)olicy)  might 
be  sold  ;  and  out  of  the  proceeds  of  such  sales  the  said  debt  and  costs  of  the  plaintiffs 
might  be  paid ;  and,  if  the  same  should  he  insufficient,  that  the  plaintiffs  might  be 
admitted  to  prove  for  the  deficiency  against  tlie  estate  of  Cooke,  in  the  bankruptcy. 
The  bill  also  prayed  the  ajipointinent  of  a  receiver,  and  for  an  injunction.  —  Ei>. 

1  Medley  v.  Martin,  Finch,  63 ;  Newlands  v.  Paynter,  4  M.  &.  C.  408 ;  Re  Morgan, 
18  Ch.  D.  93 ;  Koberts  v.  Death,  8  Q.  IJ.  Div.  319 ;  Gill  c.  Continental  Co.,  L.  K.  7  Ex. 
332  ;  Cooper  i-\  Griffin,  "32,  1  Q  B.  740  (explaining  Cragg  v.  Taylor,  L.  R.  I  Ex.  148) ; 
McAuley  v.  Clarendon,  8  Ir.  Ch.  121  ;  Gordon  r.  Cheyne  (Court  of  Session,  1824),  L. 
S.  566;  Wauzer  c.  Truly,  17  How.  584  ;  Freedman's  Co.  v.  Earle,  110  U.  S.  710,  713; 
Hitchcock  V.  (J.alveston  Co.,  50  F.  K.  203  ;  Sncdiker  r.  IJoyleston,  83  Ala.  408  ;  Spicor  r. 
Spicer,  21  Ga.  200;  McLaurie  y.  I'artlow,  53  111.  340 ;  Tracy  i.  Kelly,  52  Ind.  535  ;  llol- 
lingsworth  v.  Trueblood,  59  Ind.  542  ;  lleberd  r.  Wines,  105  Ind.  237  ;  Taylor  v.  Dues- 
terburg,  109  Ind.  165;  Rennet  »-.  Strait,  63  Iowa,  620  ;  M<irrill  r.  Raymond,  28  Kas. 
415;  Hostick  ".  Koizer,  4  J.  J.  Marsh,  597  ;  Logan  v.  Moore,  7  Dana,  74,  77;  Hooker 
I).  Carlile,  14  Bush,  154 ;  Rogers  v.  Ilendsley,  2  la.  597  ;  Iluntt  v.  Townsliend,  31  Md. 
336;  llartsock  ;;.  Ru.ssell,  52  Md.  619;  Carter  r.  I'orter,  55  Mo.  .337;  Monghton  i\ 
iJavenport,  74  Me.  591  ;  Lerow  i-.  Wilmarth,  9  All.  382;  Hancock  v.  Titus,  39  Miss. 
224;  Callaway  »'.  .Johnson,  51  Mo.  .33;  South  Church  r.  Ilintze,  72  Mo.  363;  Connor 
V.  Follansbee,  59  N.  H.  124  ;  Forrin  v.  P>rol,  59  N.  II.  234  ;  Campfield  v.  Johnson,  1 
Hal.'^t.  Ch.  245 ;  Bunu  v.  Mitchell,  27  N.  J.  E(|.  .54;  Ells  v.  Tou.sley,  1  Raige,  2S0 ; 
Lounsbnry  v.  Purdy,  11  Barb.  490;  Smith  r.  Bank,  4  Jones,  Eq.  303;  Mc(Jovcrn  c. 
Knox,  21  Oh.  St.  547  ;  Drysd.ale's  Appeal,  15  Pa.  457  (scmUo)  ;  Sheetz  v.  Negley,  13 
Phila.  506;  White  v.  Kav.-inagh,  8  Ki.h.  377;  Thomas  ?•.  Walker,  6  Hum.  93;  Click 
V.  (!lick,  1  Hcisk.  607  ;  Gass  v.  Vi;\nn,  1  Hr-isk.  613;  Sandford  v.  Wep<!cn,  2  Heisk.  71  : 
Bakery.  Hardin,  10  Heisk.  300;  Oborthir-r  (,-.  Stroud,  .33  Tex.  522  ;  Park(T  r.  Coop,  60 
Tex.  Ill;  Williams  v.  FuUcrton,  20  Vt.  346 ;  Hackett  v.  Callouder,  32  Vt.  97  ;  Whit- 


a  4  Myl.  &  Cr.  408. 


410  WHITWOKTII   V.   GAUGAIN.  [CHAP.  III. 

is  decisive  upon  that  point,  and  the  other  cases  cited  at  the  bur  prove 
the  same  thing.  Secondly,  take  the  case  of  a  purchaser  for  value 
before  conveyance.  Lodge  v.  Lyseley  ^  is  an  authority,  if  authority 
could  be  wanting,  to  show  that  tiie  equitable  interest  of  such  a  party 
will  be  preferred  in  equity  to  the  claim  of  the  judgment  creditor  of 
the  vendor.-  Again,  take  the  case  of  an  equitable  charge  to  pay  debts, 
or  legacies,  or  any  other  equitable  interest,  except  that  of  an  equi- 
table mortgagee,  and  I  apprehend  the  right  of  the  equitable  incum- 
brancer to  be  preferred  to  the  judgment  creditor  of  the  debtor,  in  whom 
the  legal  estate  in  the  property  charged  might  be,  will  be,  as  indeed  it 
properly  was,  admitted.  And  if  such  equitable  interests  are  thus 
protected,  upon  what  principle  is  the  equitable  mortgagee  to  be  ex- 
cluded from  the  like  protection?  Unless  I  misunderstand  the  report 
of  the  case  of  Williams  r.  Craddock,^  the  counsel,  as  well  as  the  cour^;, 
were  of  opinion,  that  an  interest  by  way  of  equitable  mortgage  was  en- 
titled in  this  court  to  the  same  protection  against  judgments  as  other 
equitable  claimants. 

In  the  argument  of  this  case  both  parties  referred  to,  and  drew  con- 
clusions from,  the  proposition  that  in  a  court  of  equity  a  purchaser  for 
value,  who  obtains  a  conveyance  of  the  legal  interest  without  notice  of 
an  equity  affecting  the  specific  subject  of  his  purchase,  will  in  equity, 
as  at  law,  have  a  better  title  to  that  subject  than  the  mere  equitable 
claimant.  The  proposition  thus  admitted,  and  necessarily  admitted 
by  both  parties,  is  pregnant  with  consequences  which  go  a  great  way 
towards  deciding  the  question  now  before  me.  If  the  tenant  by  elegit 
is  (as  was  argued)  to  be  considered  as  a  purchaser  for  value  without 
notice  under  a  conveyance,  all  trusts,  and  all  equitable  interest  of 
every  description,  must  be  subject  to  the  judgments  against  the  trustee. 
For  a  purchaser  for  value,  without  notice  from  a  fraudulent  trustee, 
having  got  the  legal  estate,  will  unquestionably  be  preferred  in  equity 
to  the  cestui  que  trust;  and  it  appears  to  me  to  be  impossible,  except  by 
a  merely  arbitrary  decision,  to  distinguish  the  case  of  an  ordinary  trust 
or  other  equitable  interest  from  the  present,  in  considering  merely  the 
effect  of  a  judgment  upon  it,  unless  it  can  be  shown  that  the  interest  of 
the  equitable  mortgagee  is,  for  the  present  purpose,  distinguishable 
from  that  of  an  ordinary  cestxii  que  trust.  Again,  it  follows,  conversely, 
that  if  the  equitable  interest  of  an  ordinary  cestui  que  trust,  or  any  other 

comb  V.  Cardell,  45  Vt.  24  ;  Borst  v.  Nalle,  28  Grat.  423  ;  Summers  v.  Darne,  31  Grat. 
791  ;  Cowardin  v.  Anderson,  78  Va.  88;  Sinclair  v.  Sinclair,  79  Va.  40  Accord. 

But  see  Buck  v.  Webb,  7  Colo.  212 ;  Roberts  v.  Brown,  1  Del.  Ch.  388  ;  Kennedy 
V.  Lee,  72  Ga.  38  ;  Hoffman  v.  Gosneld  (M'd,  1892),  24  Atl.  R.  28;  Blake^ey  v.  LeDac, 
25  Minn.  448;  City  Bank  v.  Hamilton,  34  N.  J.  Eq.  158,  where  the  cestui  que  trust  was 
postpone  1  to  creditors  of  the  trustee.  —  Ed. 

1  2  Sim.  70. 

2  Finch  V.  Earl  of  Winchelsea,  1  P.  Wms.  277  (semhie) ;  Prior  v.  Penpraze,  4  Price, 
99 ;  Lodge  v.  Lyseley,  4  Sim.  70 ;  Thompson  v.  Edelin,  2  Har.  &  J.  64 ;  Houston  v. 
Rowland,  7  Gill  &  J.  480 ;  Lane  v.  Ludlow,  6  Paige,  316  n. ;  Moyer  v.  Hinman,  13  N. 
Y.  180,  190;  Smith  v.  Gage,  41  Barb,  60;  Blackmer  v.  Phillips,  67  N.  Ca.  340;  Man- 
ley  V.  Hunt,  1  Ohio,  121 ;  Barry.  Hatch,  3  Oh.  527  Accord.  — Eu. 

'  8  4  Sim.  316. 


SECT.  VII.]  WHITWORTH   V.    GAUGAIN.  411 

equitable  interest,  is  not  subject  to  judgments  against  the  trustee, 
though  executed,  then  those  judgments,  though  executed,  are  not  analo- 
gous to  purchases  for  value.  In  other  words,  the  judgment  creditor  of 
a  trustee  is  not  a  purchaser  for  value  in  the  contemplation  of  a  court  of 
equity.  The  proposition,  that  a  judgment  creditor  is  a  purchaser  for 
value,  would  prove  too  much  for  the  defendants'  purpose.  It  would 
aflfect  all  equitable  interests  alike. 

But  it  was  said  that  the  interest  of  an  equitable  mortgagee  was  dis- 
tinguishable from  that  of  an  ordinary  cestui  que  trust,  aud  other  equi- 
table interests  (charges,  for  example,  to  pay  debts  and  legacies  paramount 
the  title  of  the  debtor;,  which  it  was  admitted  would  be  preferred  in 
equity,  —  that  the  interest  of  the  equitable  mortgagee  w'as  imperfect ; 
that  of  the  cestui  que  trust  perfect.  In  what  respect  is  the  interest  of 
the  equitable  mortgagee  imperfect?  As  between  the  mortgagor  and 
mortgagee  it  is  absolute  and  complete.  In  what  respect  is  it  imperfect 
as  between  the  mortgagee  and  those  who  claim  under  the  mortgagee,  as 
his  creditors  by  judgment?  The  interest  of  the  equitable  mortgagee  is 
liable  to  be  defeated  by  a  fraudulent  dealing  with  the  legal  estate,  aud 
in  that  respect,  no  doubt,  it  is  imperfect.  But  that  is  an  iullrmity  to 
which  all  equitable  interests  are  subject ;  and  if  other  equitable  iuter- 
ests  are  to  be  protected  against  judgments  obtained  against  the  trustee, 
or  other  party  in  whom  the  legal  estate  may  be,  why  is  the  interest  of 
the  equitable  mortgagee  to  be  unprotected?  The  debt  was  no  more 
contracted  upon  the  view  of  the  land  (if  that  were  material,  which  I 
think  it  is  not)  in  the  one  case  than  in  the  other. 

The  most  plausible  way  of  stating  the  case  in  favor  of  the  judgment 
creditor  is  by  supposing  his  right  to  be  founded  in  contract,  and  not  to 
be  the  result  of  a  proceeding  in  iitvituni;  aud  this,  no  doubt,  may  Ite 
the  truth  of  the  case,  when  the  judgment  is  voluntarily  confessed  ;  aud 
I  paid  the  greatest  attention  to  the  arguments  of  counsel  upon  that 
point.  But,  admitting  that  view  to  be  correct,  how  does  it  alter  the 
case?  The  question  remains.  —  what  was  the  contract?  It  was  a 
general  contract  for  a  judgment,  and  the  fruits  of  a  judgment ;  and 
the  original  (piestion,  therefore,  —  what  right  does  a  judgment  confer? 
—  remains  wholly  untouched  by  the  concession.  If  a  party  contracts 
specifically  for  a  given  property,  pays  the  purchase-money,  and  obtains 
the  legal  title,  without  notice  up  to  the  time  of  olttaniing  the  conve}'- 
ance,  as  well  as  of  paying  his  money,  that  may  give  him  a  right  to  l)e 
preferred  to  an  equitable  claim  which  is  prior  in  point  of  time.  But 
there  is  no  principle  upon  which  a  court  of  justice  can  he  required  to 
imply  that  a  general  contract  to  give  a  judgment  is  a  contract  to  give 
that  which  docs  not  belong  to  the  debtor.  If  the  trustee  were  to  con- 
fess a  judgment,  am  I  to  imply  that  it  amounts  to  a  specific  contract 
to  give  the  creditor  an  interest  in  that  wliich  belongs  to  the  rrstui  que 
trust?  That  appears  to  me  to  be  the  true  distinction.  In  one  case  the 
party  contracts  for  a  specific  thing,  —  in  the  other  he  merely  takes  a 
judgment,  that  gives  him  nothing  more  than  a  right  to  that  whi(  :i 
belongs  to  his  deijtor. 


412  AVIllTWOKTII    v.    GAUGAm.  [ciIAP.  IlL 

The  above  propositions,  which,  separately  taken,  I  believe  to  be  un- 
impeachable, will  be  found  to  meet  every  argument  that  was  addressed 
to  me  in  support  of  the  defendants'  case,  independently  of  the  late 
statutes. 

I  am  clear  that  the  late  statutes  make  no  difference  in  the  case.  vSo 
far  as  the  judgment  creditor  claims  to  be  a  mortgagee,  in  writing, 
under  the  statute,  he  is  posterior,  in  point  of  time,  to  the  plaintiffs. 
But  it  was  said  that  the  eciuity  of  the  judgment-creditor  was  equal  to 
that  of  the  ecjuitable  mortgagee,  and  that  he  has,  by  the  force  of  the 
elegit  executed,  an  estate  at  law  in  addition  to  his  equitable  interest, 
and  therefore  is  to  be  preferred.  I  need  not,  after  what  I  have  already 
said,  proceed  to  expose  the  fallacy  of  this  argument ;  it  takes  for 
granted  the  whole  question  in  dispute.  That  the  tenant  by  elegit  has 
an  estate  in  that  which  he  may  lawfully  take  (that  which  belongs  to  his 
debtor),  I  do  not  deny  ;  but  to  say  that  by  force  of  the  elegit  he  ac- 
quires a  rightful  interest  in  this  court,  in  that  which  in  equity  does  not 
belong  to  his  debtor,  is  taking  the  whole  matter  in  contest  for  granted, 
the  whole  question  being  what  he  may  take. 

I  can  only  rei)eat  that  it  appears  to  me  impossible,  except  upon  the 
most  arbitrary  distinction,  to  say  that  the  interests  of  an  equitable 
mortgagee  are  not  to  be  protected,  and  yet  that  protection  is  to  be 
afforded  to  the  interests  of  an  ordinary  cestui  que  trust  and  other  equi- 
table interests.  I  do  not  go  into  the  reasoning  of  the  cases  which  have 
been  cited ;  all  of  them,  however,  appear  to  me  to  support  the  view  I 
have  taken.  If  my  judgment  cannot  be  supported  upon  propositions 
which  are  indisputable  in  themselves,  —  whether  properly  applicalAe  to 
the  case  or  not,  —  no  explanation  I  can  give  of  the  cases  will  at  all 
strengthen  the  foundation  of  that  judgment.  I  must  hold  that  the 
plaintiffs  have  a  right  to  the  payment  of  their  debt  out  of  the  estate 
comprised  in  the  deed.  If  there  is  any  difficulty  in  the  details  of  the 
decree,  the  case  may  be  mentioned  again.' 

1  AflRrmed  hy  Lord  Cottenham,  1  Phill.  728,  who  said,  p.  733  ;  "  In  the  argument 
on  the  part  of  the  defendant,  the  case  wa.s  put  ui)oii  the  footing  of  a  purchaser  for 
value  without  notice,  who  would  be  preferred  to  a  ])rior  equitable  mortgagee.  But 
a  distinction  in  this  respect  has  always  been  made  between  a  judgment  obtained  with- 
out notice  of  a  ])revious  charge,  and  a  purcliase  or  mortgage.  In  the  case  already 
mentioned  of  Burgh  v.  Francis,  judgments  had  been  obtained,  but  they  were  not 
allowed  to  prevail  against  the  plaintiff's  equity.  '  A  purchaser  without  notice  of  the 
trust,'  Lord  Nottingham  observed,  '  may  be  free,  but  an  incnmlirance  '  (speaking  of  the 
judgments)  '  is  not  like  a  sale  '  The  learned  author  of  the  Fonnn  Rowanum  exj)resses 
himself  to  the  same  effect.  '  Tn  tlie  case  of  a  judgment  creditor,'  he  says,  '  the  original 
security  was  only  personal,  and  a  court  of  efpiity  will  not  suffer  the  person  that  origin- 
ally lent  upon  tlie  .-;o(urity  of  land  to  have  the  .security  destroyed  by  one  who  did  not 
lend  upon  that  security.'  Thi.s  distinction  is  also  taken  in  the  case  of  Brace  v.  The 
Duchess  of  Marlborough,  2  I'.  Wms.  491  ;  in  Taylor  v  Wheeler,  2  Vern.  564;  in  Sir 
Simeon  Stuart's  Case,  cited  3  Ves  .576  ;  and  in  many  other  cases."  See  to  the  same 
effect  Burgh  v.  Francis,  3  Swanst  336,  n.  (n) ;  Finch,  28  s.  c.  ;  Casberd  v  Atty.-Gen.,  6 
Price,  411  ;  Brearcliff  v.  Dorrington,  4  l)e  G.  &  Sm,  122  ;  Beavan  v.  Oxford,  6  I).,  M. 
&  G.  507  ;  Kindersley  v.  Jervis,  22  Beav.  1 ;  Scott  v.  Hastings,  4  K.  &  J.  633  ;  Eyre  v. 
McDowell,  9  H.  L.  619;  Pickering  v.  Ilfracombe  R.  R.,  L.  R.  3  C.  P.  235 ;  Abbott  v. 


SKCT.  VII.]  WHITWORTH   V.    GAUGAIN.  41 


o 


Straiten,  3  Jones  &  Lat.  603  ;  Dunster  v.  Glengall,  3  Ir.  Cli.  47  ;  Pennock  v.  Coe,  23 
How.  117  ;  Re  Howe,  1  Paige,  125  ;  Eoliinson  v.  Williams,  22  N.  Y.  380;  Ins.  Co.  v. 
Phcenix  Co.,  71  Pa.  31  ;  Delaire  v.  Keenan,  3  Uess.  74. 

On  the  same  principle  the  mortgagee  uf  property  to  be  hereafter  acquired  will  take 
precedence  of  a  subsequent  execution  creditor  of  the  mortgagor.     Langton  v.  Horton, 

I  Hare,  560;  Holroyd  v.  Marshall,  10  H.  L.  C.  191  (reversing  s.  c.  2  D.,  F.  &  J.  596, 
and  explaining  Mogg  v.  Baker,  3  M.  &  W.  195) ;  Brown  v.  Bateman,  L.  R.  2  C.  P.  272  ; 
Re  Clarke,  35  Ch.  D.  100  ;  Tailhy  r.  Off.  Receiver,  13  App.  Cas.  523  (overruling  Beld- 
ing  V.  Read,  3  H.  &  C.  191,  and  A'e  D'Epiueuil,  20  Ch.  D.  758j ;  Re  Dublin  Co.,  L.  R. 
13  Ir.  174;  Mitchell  v.  Winslow,  2  iStory,  630,  644 ;  Pennock  v.  Coe,  23  How.  117  (see 
also  Butt  V.  Ellett,  19  Wall.  544;  1  Woods,  214,  s.  c) ;  Bcall  v.  White,  94  U.  S.  382 
(semble);  Brett  r.  Carter,  2  Low.  458;  Barnard  v.  Norwich  Co.,  14  N.  B.  R.  469  (see 
Schuelenburg  v.  Martin,  2  Fed.  Rep.  747);  Robinson  v.  Mauldin,  11  Ala.  977;  Floyd 
V.  Morrow,  26  Ala.  344 ;  Apperson  v.  Moore,  30  Ark.  56  (semble)  ;  Gregg  v.  Sanford, 

111.  17  (semble) ;  Scharfeuburg  v.  Bisliop,  35  Iowa,  60  (semble);  Hamlin  r.  Jerrard, 
72  Me.  62 ;  Griffith  r.  Douglas,  73  Me.  532  (see  Morrill  c.  Noyes,  56  Me.  458  ;  Deer- 
ing  V.  Cobb,  74  Me.  332) ;  People  v.  Bristol,  35  Mich.  28  ;  Sillers  v.  Lester,  48  Miss. 
513  (semble);  Wright  v.  Bircher,  72  Mo.  179;  Rutherford  v.  Steuart,  79  Mo.  216; 
France  v.  Thomas,  86  Mo.  80;  Keating  v.  Hauueukamp,  100  Mo.  162  ;  Smithurst  i;, 
Edmunds,  1  McCarter,  408;  Williams  c.  N.  J.  Co.,  29  N.  J.  Eq.  311,  320  (semble); 
Hale  V.  Omaha  Bank,  49  X.  Y.  626 ;  McCaffrey  v.  Woodin,  65  N.  Y.  459 ;  Wisner  i-. 
O'Cumpaugh,  71  X.  Y.  113;  Coates  v.  Dounell,  94  X.  Y.  168  ;  Kribbs  v.  Alford,  120 
N.  Y.  519  (but  see  Farmers'  Co.  v.  Long  Beach  Co.,  27  Hun,  89) ;  Phila.  Co.  v.  Woelp- 
per,  64  Pa.  366;  Groton  Co.  v.  Gardiner,  11  R.  L  626,  Cork  v.  Corthell,  11  R.  I.  482; 
Williams  (•.  Briggs,  11  R.  L  476;  Williams  v.  Wiusor,  12  R.  I.  9;  Tedford  v.  Wil- 
son, 3  Head,  311  ;  Phelps  v.  Murray,  2  Teun.  Ch.  746;  First  Bank  v  TurubuU,  32 
Grat.  695. 

But  see  contra,  Ross  v.  Wilson,  7  Bush,  29;  Moody  v.  Wright,  13  Met.  17,  30; 
Chase  v.  Denny,  130  Mass.  506;  Cook  v.  Bianchard,  144  Mass.  207,  223;  Chyuoweth 
V.  Tenney,  10  Wis.  397  ;  Hunter  v.  Bosworth,  43  Wis.  583  (semble) 

In  England,  and  in  most  of  thfe  States  in  this  country,  a  creditor  can  reach  by  legal 
process  only  the  debtor's  interest  in  a  chose  in  action.  Accordingly,  if  the  debtor  lias 
previously  assigned  the  chose  in  action,  the  creditor  is  bound  by  tiie  assignment,  even 
though  the  assignee  has  given  no  notice  thereof  to  the  obligor.  Lewis  i;.  Wallis,  T. 
Jones,  222  ;  Fa.shion  v.  Atwood,  2  Ch.  Ca.  36 ;  Hirsch  v.  Coates,  18  C.  B.  757  ;  We.stoby 
V.  Day,  2  E.  &.  B.  605  ;  Tickering  v.  Ilfracombe  R.  R.,  L.  R.  3  C.  P.  235  (overruling 
Watts  r.  Porter,  3  E.  &  B.  743) ;  A'e  General  Co.,  32  Ch.  D.  512 ;  Re  Bell,  54  L.  T.  Rep. 
370 ;  Badeley  v.  Cousol.  Bank,  34  Ch.  I).  536, 38  Ch.  Div.  238  ;  Davis  v.  Freetliy,  24  Q.  B. 
Div.  519;  Crayton  ;•.  Chirk,  11  Ala.  787;  Walling  r.  Miller,  15  Cal.  38;  Saminis  c. 
L'Engle,  19  Fla.  800;  Whitten  r.  Little,  Ga.  Dei\  (I't.  II.)  99;  Walton  r.  lk"thune,37 
Ga.  319  ;  Daniels  v.  Meinhard,  53  Ga.  359 ;  Csiro  Co.  v.  Killenberg,  82  111.  295  ;  Mag- 
bee  i:  Robinson,  98  111.  458  (but  see  First  Cliurcli  v.  Hyde,  40  111.  l.")0);  Walters  v. 
Washington  Co.,  1  Iowa,  404  ;  .Smith  r.  Clark(',  9  luwa,  241  ;  .MiWilliams  c.  Webb,  32 
Iowa,  577  ;  McGuire  v.  Pitts,  42  Iowa,  535;  Van  Winkle  c.  Iowa  Co.,  56  Iowa,  245; 
Ives  V.  Addison,  39  Kas.  172;  Stockton  v.  Hall,  Hardin,  160;  Newby  r.  Hill,  2  Met. 
(Ky.)  5.'{0;  Littlelield  c.  Smith,  17  .Me.  327  ;  Millikcn  c.  Loring,  37  .Me.  408  ;  Hardy  r. 
Colby,  42  Me.  381  ;  Brady  v.  State,  26  Md.  290  ;  Wakefield  v.  Martin,  3  Miu<3.  .558; 
Dix  V.  (.'obb,  4  .Ma.s».  .508  ;   Providence  Hank  v.  Benson,  24  I'ick.  204  ;  Martin  r.  I'ottor, 

II  Gray,  37  ;  Kingman  v.  I'erkiiiH,  105  Mass.  Ill  ;  Norton  r  PiHcata<iua (  o.,  Ill  Mass. 
532;  Thayer  c.  Daniels,  113  Mas.M.  129;  Ho.ston  Music  As.sociation  i*.  Cory,  129  Mass. 
435  ;  Taft  v.  Bowker,  132  Mass.  277  ;  McDonald  o.  Knceland,  5  Minn.  352 ;  Williams 
V.  Pomeroy,  27  Minn.  85;  Smith  v.  Sterritt.  24  Mo.  260  ;  Davis  v.  Carsnn.  69  Mo.  603  ; 
Greentreo  v.  Rosenstock,  61  N.  Y.  583;  Williams  c  Ingcrsoll,  89  N.  Y.  .'>(im  ;  Smilh  r. 
Longmirc,  24  Hun,  257  ;  Groavenor  r.  Allen,  9  Paige,  74  (sec  also  \'an  IJuskirk  c. 
Hartford  Co.,  14  Conn.  583) ;  Haldcman  r.  Hillsborough  Co.,  2  Handy,  101  ;  Copelaud 
i;.  Manton,  22  Ohio  St  39H  ;  Oregon  Co.  v.  (i.itfs,  10  Oreg  514;  Stevens  r.  Stevens,  I 
Aahm.  190;  U.  S.  v.  Vaughan,  3  IJinn.  394;  rdlman  v.  Hart,  1   Burr,  263;  Paltou  v. 


414  WHITWORTII   V.   GAUGAIN.  [CIIAP.  III. 

Wilson,  34  Ta.  399;  Ins.  Co.  v.  riiocnix,  71  Pa.  31  ;  Noble  v.  Thompson  Oil  Co.,  79 
Pa.  3.')4  ;  WiUlaco's  App.,  104  Pa.  559;  Tide  Water  Co.  v.  Kitchonman,  108  Pa.  630; 
Canal  Co.  r.  Insnrauoo  Co.,  2  Phila.  354  ;  Noble  i-.  Smith,  6  R.  I.  446 ;  Northam  v. 
Cartwright,  10  K.  I.  19  ;  Lee  v.  Robinson,  15  R.  I.  369  ;  Alexander  v.  Adams,  1  Strob. 
47  ,  Tazewell  v.  Barrett,  4  Hen.  &  M.  259  ;  Anderson  v.  De  Soer,  6  Grat.  363  ;  Bank 
of  Valley  v.  Gettinger,  3  W.  Va.  309 ;  Gregg  v.  Sloan,  20  W.  Va.  509. 

Bnt  SCO  contra,  Woodbridge  v.  Perkins,  3  Day,  364 ;  Jndah  v.  Judd,  5  Day,  534 ; 
Bishop  V.  Holcomb,  10  Conn.  444  (senible) ;  Van  Buskirk  v.  Hartford  Co.,  14  Conn. 
141  ;  Clark  c.  Connecticut  Co.,  35  Conn.  303  (sembic)  (see  also  Warren  v.  Copclin,  4 
Met.  594);  Clodfelter  v.  Cox,  1  Sneed,  330;  Mutual  Co.  v.  Hamilton,  5  Sliced,  269 
(semble) ;  Dews  v.  Olwill,  59  Tenn.  432 ;  Flickey  v.  Loney,  4  Baxter,  169  (semble)  ; 
Penniman  i'.  Smith,  5  Lea,  130;  Daniels  v.  Pratt,  6  Lea,  443  (semble)  ;  Dinsmore  v. 
Boyd,  6  Lea,  689  [semble)  ;  Robertson  i'.  Baker,  10  Lea,  300  (see,  however,  Sugg  v. 
Powell,  1  Head,  221  ;  Gayoso  Inst.  v.  Fellows,  6  Cold.  471-472 ;  Cornick  r.  Richards, 
3  Lea,  1) ;  Barney  v.  Douglas,  19  Vt.  98;  Ward  t;.  Morrison,  25  Vt.  593;  Loomis  v. 
Loomis,  26  Vt.  198,  203  {semble) ;  Dale  v.  Kimpton,  46  Vt.  76 ;  Weed  v.  Boutelle,  56 
Vt.  570.     Conf.  Conway  v.  Cutting,  51  N.  H.  407. 

In  strict  analogy  with  the  preceding  cases,  one  to  whom  certificates  of  stock  have  been 
transferred  is  protected  against  subsequent  attaching  creditors  of  the  assignor,  although 
no  notice  of  the  transfer  has  been  given  to  the  company.  Robinson  v.  Nesbitt,  L.  R. 
3  C.  P.  264 ;  Duuster  v.  Glengall,  3  Ir.  Ch.  47  ;  Continental  Bank  v.  Eliot  Bank,  7 
Fed.  Rep.  369  ;  Scott  v.  Pequonuock  Bank,  15  Fed.  Rep.  494  ;  Hazard  v.  Nat.  Bank, 
26  Fed.  Rep.  94 ;  People  v.  Elmore,  35  Cal.  653  ;  Smith  v.  Crescent  Co.,  30  La.  Ann. 
1378;  Friedlander  I'.  Slaughter  House  Co.,  31  La.  Ann.  523;  Boston  Music  Associa- 
tiou  r.  Cory,  129  Mass.  435;  Sibley  v.  Quiusigamond  Bank,  133  Mass.  515  (but  see 
Fisher  v.  Essex  Bank,  5  Gray,  373  ;  Boyd  v.  Rockport  Mills,  7  Gray,  406  ;  Blanchard 
'v.  Dedham  Co.,  12  Gray,  213;  Rock  v.  Nichols,  3  All.  .342,  contra.  In  Massachusetts 
by  Pub.  St.  c.  105,  §  24,  title  to  shares  was  made  subject  to  a  registry  law  as  in  the  case 
of  land.  But  this  statute  was  repealed  by  St.  1884,  c.  229,  which  protects  an  assignee 
who  holds  the  certificate  under  a  written  transfer) ;  Clark  v.  German  Bank,  61  Miss. 
613  ;  Merchants'  Bank  v.  Richards,  74  Mo.  77  ;  Rogers  v.  Stevens,  4  Halst.  Ch.  167  ; 
Broadway  Bank  v.  McElrath,  2  Beas.  24  ;  Hunterdon  Bank  v.  Nassau  Bank,  17  N.  J. 
Eq.  496  ;"Sniith  v.  American  Co.,  7  Lans.  317  ;  Dunn  v.  Starr  Co.,  19  N.  Y.  W.D.531; 
Norton  v.  Norton,  43  Oh.  St.  509  ;  Comm.  v.  Watmough,  6  Whart.  117  ;  Finney's  Ap- 
peal, 59  Pa.  398  ;  Early's  Ap.  7  W.  N.  (Pa.)  184  ;  Frazer  v.  Charleston,  11  S.  Ca.  486  ; 
Cornick  v.  Richards,  3  Lea,  1  (overruling  in  effect  State  Co.  v  Sax,  2  Tenn.  Ch.  507) ; 
Cherry  v.  Fro.st,  7  Lea,  1  (semble) ;  Strange  v.  Houston  Co.,  53  Tex.  162  (seinble) ; 
Seeligson  v    Brown,  61  Tex  114  ^ccorc?. 

But  see  Jones  v.  Latham,  70  Ala.  164  (statutory) ;  Avels  v.  Mobile  Co.  (Ala.  1891), 
9  S.  R.  423  (statutory) ;  Weston  v.  Bear  River  Co.,  5  Cal.  186,  6  Cal.  425 ;  Naglee  v. 
Pacific  Co.,  20  Cal.  529 ;  Shipman  v.  ./Etna  Co.,  29  Conn.  245 ;  Colt  v.  Ives,  31  Conn. 
25 ;  People's  Bank  v,  Gridley,  91  111.  457;  Fort  Madison  Co.  v.  Batavia  Bank  (Iowa, 
1877),  32  N.  W.  R.  336  (statutory);  Skowhegau  Bank  v.  Cutler  49  Me.  315  ;  Pinker- 
ton  V.  Manchester  Co.,  42  N.  H.  424  ;  Scripture  v.  Soapstone  Co.,  50  N.  H.  571  ;  Sabin 
V.  Bank  of  Woodstock,  21  Vt.  353 ;  Cheever  v.  Mayer,  52  Vt.  66;  Murphy's  Applic. 
51  Wis.  519  (statutory),  contra.  —  Ed. 


SECT.  YII.]  WORK  ALL   V.    HARFOED.  415 


WORRALL  V.   HARFORD. 
In  Chaxceuy,  before  Lord  Eldon,  C,  November  1,  1802. 

[Reported  in  8  Vesey,  4.] 

The  bill  stated  that  in  and  previous  to  the  year  1769  Edward  Lloyd 
and  William  James,  of  Bristol,  carried  on  business  as  merchants  and 
copartners  ;  and  the  plaintiff  was  employed  by  them  as  their  attorney 
and  solicitor  in  all  their  legal  business,  and  in  procuring  for  them 
money  on  their  bond  ;  that  Lloyd  dying,  and  James  sinking  in  credit, 
the  plaintiff  was  employed  to  issue  a  commission  of  bankruptcy  against 
him:  and  in  or  about  February,  1771,  struck  a  docket  on  the  petition 
of  Nathaniel  Stephens  ;  and  was  directed  to  summon,  and  did  summon, 
a  meeting  of  the  creditors ;  when  it  was  agreed  that  James  should 
execute  a  deed  of  assignment  for  the  benefit  of  all  said  creditors,  to  be 
prepared  by  the  plaintiff ;  and  accordingly  by  indenture,  prepared  by 
the  plaintiff,  and  bearing  date  the  loth  of  January,  1772,  it  was  wit- 
nessed, that  "William  James  did  assign,  transfer,  and  make  over  to 
defendants  all  the  joint  or  copartnership  stock  in  trade,  upon  trust  to 
sell  and  dispose  thereof ;  and  thereout  in  the  first  place  to  pay  the 
expenses  attending  the  application  for  said  commission  of  bankruptcy, 
and  also  all  the  costs  and  charges  of  said  deed  and  other  incidental 
charges  and  expenses  of  the  trust ;  and  to  pay  and  reimburse  them- 
selves all  such  costs,  charges,  damages,  and  expenses  which  they 
should  be  put  unto  in  the  management  and  execution  of  said  trust ; 
and  said  defendants  covenanted  that  they  sliould  make  sale  of  said 
partnership  effects,  and  get  in  all  debts  due  to  said  copartnership  ; 
and  further,  that  they  should,  as  often  as  such  moneys  should,  after 
deducting  tlie  payments  to  be  made  tliereout  as  aforesaid,  and  reserv- 
ing a  sulHcient  sum  to  answer  the  further  probable  contingent  expenses 
of  the  trust,  amount  to  a  competent  sum  to  pay  one  shilling  in  the 
pound,  pay  the  same  equally  amongst  the  said  creditors  according  to 
their  respective  demands. 

The  Ijill  further  stated,  that  the  affairs  of  said  partnership  being  very 
intricate,  and  there  being  various  legal  proceedings,  and  partic'ularly 
an  appeal  from  one  of  his  Majesty's  courts  in  America,  plaintiff  was 
directed  by  said  defendants  to  conduct  such  ai)peal  on  their  Itehalf,  and 
generally  to  manage  and  direct  the  legal  business  relating  to  Haid  part- 
nership, and  tlie  trusts  of  the  deed  ;  and  tlie  phiinlilT  from  time  to  time 
prepared  deeds  relating  to  said  trust  affairs,  and  prosecuted  the  appeal, 
and  disbursed  various  sums,  and  took  various  journeys,  and  had  and 
made  various  attendances  on  acTount  of  the  trustees  ;  and  1)Y  liis  exer- 
tions and  labor,  and  the  sums  expended  by  him,  the  defendants  became 
indebted  to  the  i)laintiff  in  a  consid(!ral»le  sum.  Upon  the  execution  of 
the  trust  deed  the  trustees  proceeded  to  act  In  the  trust ;  but  the  whole 
of  such  partnership  debts  and  credits  have  never  been  finally  settled, 


416  WORRALL  V.   HARFORD.  [CHAP.  III. 

nor  have  all  the  trusts  of  said  deeil  been  performed  and  the  accounts 
closed.  The  plaintiff  hath  delivered  in  bill  of  costs  and  disbursements 
paid  and  incurred  by  him  as  soliciior  under  the  trust  deed,  and  received 
some  sums  upon  account  from  the  said  trustees ;  but  he  hath  never 
settled  any  account  with  said'trustees,  and  the  whole  of  such  bills  have 
never  been  paid.  James  is  long  since  deceased  ;  and  the  defendants, 
the  surviving  trustees,  have  never  made  any  final  dividend ;  and  the 
plaintiff,  as  solicitor  of  said  trustees,  having  a  considerable  demand 
Hpou  them,  as  before  mentioned,  frequently  applied,  and  requested 
them  to  come  to  an  account  of  said  trust  estate  possessed  or  received 
by  them  under  the  deed,  and  to  apply  out  of  the  balance  in  their  hands 
a  sufficient  sum  to  discharge  the  bills  and  demands  of  plaintiff,  and 
particularly  on  or  about  the  9th  January,  1784,  19th  November,  1787, 
24th  April,  1790,  loth  November,  1790;  and  at  several  times  since, 
said  Willianj  James  made  applications  to  them  for  the  same  purpose. 
The  bill  then  charged  that  a  considerable  balance,  amounting  to  £80 
9s.  3fZ.  remains  due  to  him  as  such  solicitor ;  and  though  many  years 
have  elapsed  since  the  execution  of  the  deed,  yet  that  plaintiff  hath 
continued  from  the  date  thereof  nearly  to  the  present  time  to  act  as 
solicitor  thereto,  and  hath  delivered  bills  of  costs  to  the  said  defend- 
ants, and  made  applications  for  payment ;  that  his  debt  ought  not  to 
be  considered  as  a  simple-contract  debt,  as  it  is  by  the  deed  in  the 
first  place  provided  that  the  trustees  shall  out  of  the  moneys  to  come 
to  their  hands  pay  and  discharge  the  expenses  of  the  commission  of 
bankruptcy,  and  also  all  costs  and  charges  of  that  deed,  and  also  all 
other  incidental  charges  and  expenses  relating  to  the  execution  of  the 
trust  thereof ;  and  in  the  next  place,  that  the  trustees  should  pay  and 
reimburse  themselves  all  their  costs  and  charges  relative  thereto :  and 
therefore  his  demand  ought  to  be  considered  as  a  specialty  debt, 
and  the  plaintiff  had  a  lien  upon  the  trust  estate  for  his  costs  and 
charges. 

The  prayer  of  the  bill  was,  that  the  plaintiff  may  be  declared  a  cred- 
itor under  the  trust  deed  for  the  amount  of  his  bills  of  fees ;  that  the 
defendants  may  account  for  all  and  every  the  sums  received  by  them, 
and  for  the  application  ;  and  that  they  may  be  decreed  thereout  to  pay 
to  the  plaintiff  the  sum  of  £80  9.s.  3cZ.,  &c. 

To  this  bill  the  defendants,  the  surviving  trustees,  put  in  a  general 
demurrer. 

Mr.  Richards  and  Afr.^  Hart,  in  support  of  the  demurrer, 

Mr.  RoniUly  and  Mr.  Martin,  for  the  plaintiff.* 

The  Lord  Chancellor  [Eldon].  This  case  must  be  determined 
upon  the  contents  of  this  particular  deed,  with  some  attention  to  the 
nature  of  trust  deeds  in  general,  and  the  allegations  of  the  bill.  It  is 
admitted  that  a  bill  of  this  kind  is  a  perfect  novelty.  It  is  in  the 
nature  of  the  office  of  a  trustee,  whether  expressed  in  the  instrument 

^  The  arguments  of  counsel  and  a  portion  of  the  opinion  relating  to  a  question  of 
pleading  are  omitted.  —  Ed. 


SECT.  VII.]  WOERALL   V.    HARFORD.  417 

or  not,  that  the  trust  property  shall  reimburse  him  all  the  charges  and 
expenses  incurred  in  the  execution  of  the  trust.  That  is  implied  in 
every  such  deed.  But  it  Avould  be  strange  from  that  implication  to 
conclude  that  the  persons  employed  by  them  are  therefore  creditors  of 
the  trust  fund.  I  doubt  very  much,  and  desire  not  to  be  understood  to 
admit,  that,  even  if  the  trustees  are  charged  not  to  be  solvent,  those 
persons  may  come  upon  the  fund.  They  can  have  no  better  right  upon 
the  expression  of  what  would,  if  not  expressed,  be  implied.  But  par- 
ticular cases  may  be  exceptions.  Try  this  in  bankruptcy.  The  peti- 
tioning creditor  is  answerable  till  the  assignment.  Can  there  be  a 
doubt  that  the  assignees,  if  there  was  nothing  special  in  the  deed, 
would  have  a  clear  right  to  pay  all  the  expense  incurred?  It  would 
be  implied,  if  not  expressed.  But  can  it  be  said  that  therefore  not  the 
solicito)'  only,  but  every  person  with  whom  the  trustees  had  incurred  a 
just  and  fair  demand,  might  sue  the  trustees,  and  come  for  au  account 
of  the  whole  administration?     That  would  be  quite  mischievous. 

This  plaintiff  had  been  employed  to  take  out  a  commission  of  bank- 
ruptcy against  the  surviving  partner.  To  the  whole  extent  he  had  pro- 
ceeded, Stephens  was  and  remained  his  debtor  personally  at  the  time 
this  project  was  tliougbt  of.  He  remained  so  after  the  meeting  for  the 
purpose  of  this  trust  deed.  If  the  trustees  had  shown  that  they  had 
paid  Stephens  in  respect  of  that  commission  of  bankruptcy,  it  would 
be  impossible  for  this  plaintiff  to  have  a  demand  against  tliem.  The 
proposal  to  supersede  the  commission,  and  that  a  trust  deed  should  be 
executed,  providing  for  the  expenses  of  preparing  the  deed,  and  that 
all  the  costs  and  charges  should  be  reimbursed,  succeeded.  Suppose 
a  bill  had  been  filed  recently  after  the  transaction,  and  the  proceedings 
and  trust  deed  not  paid  for :  the  plaintiff,  no  party  to  the  deed,  and 
having  clearly  had  the  personal  liability  of  Stephens  and  the  trustees  as 
to  the  commission,  and  the  personal  liability  of  the  trustees  for  prepar- 
ing the  deed,  if  they  accepted  it.  It  was  not  the  meaning  of  the  deed 
that  he  should  have  a  right  to  sue  in  this  way.  It  was  his  duty  to  in- 
form tliem  of  the  inconvenience  of  giving  a  riglit  to  sue  in  this  way ; 
for,  as  it  has  been  observed,  this  would  not  stop  witli  tlic  solicitor,  for 
many  other  persons  might  be  employed  in  the  execution  of  the  trust. 

The  demwrer  tvas  aUoived,} 

1  Hall  V.  Laver,  1  Hare,  571  Arnortl. 

In  Hall  V.  I>avor,  siijtm.  Sir  J.  Wiprnm,  V.  C,  saifl,  p.  .'577  :  "  Tdo  cnso  tliproforo 
resolves  it.seif  into  a  (|iiestif)ii  of  law,  niunolv,  whether  if  a  trusteo,  or  one  of  Heveral 
cestui  que  trusts,  cmp\o\a  A  HoUnUiT  to  act  in  tho  matters  of  the  tniHt,  that  retainer 
giveH  th«  solicitor  a  rif^ht  of  action  afjain.st.  each  of  the  other  crslui  i/uf  inisln,  or  a  lien 
upon  their  Hharcs  of  tlie  trnst  ewtatr',  for  his  costs  incurred  in  relation  to  tho  trust. 
That  the  above  cirnirnBtances  givo  no  ripht  of  action  against  any  Imt  the  retaining 
party  is  clear.  That  the  .same  circnm.stances  give  no  lien  upon  a  trust  fund,  not  ad- 
ministered in  court,  is  more  than  jiroved  liy  tho  case  of  Worrall  r.  H.irford,  H  Ves.  4,in 
which  it  wa«  clearly  lai<I  down,  l»y  Lord  Kldon,  that  a  solicitor  emjiloycd  hy  a  trustee 
has  no  lien  upon  the  tru.nt  fund  for  his  costs,  although  tho  trustee  paying  those  costa 
might  himself  retain  them  ont  of  tho  fund." 

But  see  /if  Pumfrey,  22  Cn.  D.  255.  —  Kd. 

27 


418  STRICKLAND   V.   SYMONS.  [CHAP.  IIL 


STRICKLAND  v.   SYMONS. 
In  tue  Court  of  Appeal,  Feukuary  8,  9,  1884. 

[Reported  in  26  Chancery  Division,  245  ] 

This  was  an  appeal  from  a  judgment  of  Baron  Pollock.^ 

The  facts,  which  are  stated  at  length  in  the  previous  report,  were 
shortly  as  follows  :  — 

By  the  marriage  settlement  of  Dr.  and  Mrs.  Sabben  a  lunatic  asylum 
at  Stoke  Newiugton  was  conveyed  to  trustees  upon  trust  to  sell  the 
same  with  the  goodwill  thereof,  and  to  stand  i)ossessed  of  the  pro- 
ceeds for  the  benefit  of  Mrs.  Sabben  and  the  children  of  the  marriage. 
But  it  was  declared  that  until  the  trust  premises  were  sold  it  should 
be  lawful  for  Dr.  Sabben  to  carry  on  the  business  of  an  asylum  upon 
the  said  premises  without  paying  any  rent  for  them  other  than  the 
rents  paj'able  under  the  leases  thereof,  but  paying  to  the  trustees  cer- 
tain sums  of  money  thereafter  covenanted  to  be  paid,  namely,  a  sura 
of  £10,000,  payable  by  instalments,  and  the  premiums  on  certain 
policies  of  insurance. 

Dr.  Sabben  carried  on  the  business  of  the  asylum  for  his  own  bene- 
fit till  July,  1875,  when  he  filed  a  petition  for  liquidation,  and  a  trustee 
was  appointed.  Immediately  on  the  liquidation,  Dr.  H.  E.  Symons, 
the  surviving  trustee  of  the  settlement,  entered  into  the  management 
of  the  asylum  with  a  view,  as  alleged  by  the  plaintiff,  to  the  preserva- 
tion of  the  business  and  to  a  sale  thereof  as  a  going  concern  under  the 
trusts  of  the  settlement.  He  carried  on  the  business  till  April,  1876, 
when  the  as3dura  was  sold  for  £18,500. 

The  plaintiff,  J.  R.  Strickland,  was  an  upholsterer  at  Gravesend, 
who  had  supplied  the  asylum  while  it  was  being  carried  on  by  Dr. 
Symons  with  furniture.  A  balance  of  £500  was  due  to  him,  for  which 
sum,  with  interest  and  costs,  he  had  recovered  judgment  in  the  Com- 
mon Pleas  Division  against  Dr.  Symons.  The  money  not  having  been 
paid  by  Dr.  Symons,  the  plaintiff  brought  the  present  action  against 
Dr.  Symons  and  Dr.  and  Mrs.  Sabben  and  their  children,  claiming  to 
be  paid  the  amount  of  his  judgment  debt  out  of  the  trust  funds. 

Mr.  Baron  Pollock  gave  judgment  for  the  defendants,  and  the 
plaintiff  appealed  from  the  judgment. 

Higgins,  Q.  C,  and  Danney^  for  the  appellant:  — 

Dr.  Symons  carried  on  the  asylum  for  the  benefit  of  the  trust  estate. 
If  he  had  himself  advanced  the  money  for  the  furniture  he  would  have 
been  entitled  to  indemnity  out  of  the  trust  funds.  P^ven  if  he  had  not 
been  a  trustee  he  would  have  been  entitled  to  be  recouped  any  money 
which  he  advanced  as  salvor  of  the  property.  In  either  case  the 
plaintiff  is  entitled  to  stand  in  his  place  and  be  paid  out  of  the  trust 

1  22  Ch.  D.  666. 


SECT.  VII. J  STRICKLAND   V.    SYMONS.  419 

funds.  The  settlement  directed  that  the  asj'lum  should  be  sold  with 
the  goodwill,  so  it  was  necessary  to  carry  on  the  asylum  in  order  to 
preserve  the  goodwill.^ 

[Earl  of  Selborne,  L.C,  referred  to  Labouchere  v.  Tupi^er.-] 
Barber,  Q.  C,  and  Kirhy^   for  Mrs.  Sabben,   and  S.  T.  Moore,  for 
the  other  defendants,  were  not  called  on. 

Earl  op  Selborne,  L.C.  This  action  has  been  rightly  described  in 
the  course  of  the  argument  as  an  action  to  enforce  the  plaintiff's  lien, 
but  you  cannot  enforce  a  lien  without  showing  that  it  exists.  There  is 
no  principle  or  authorit}'  for  saymg  that  if  a  trustee  makes  himself 
personally  liable  for  goods  the  creditor  thereby  obtains  a  lien  on  the 
trust  property.  There  is  not  the  least  authority  for  such  an  action  as 
the  present.  It  is  an  action  for  an  equitable  execution  against  the 
trust  estate  in  respect  of  a  judgment  against  the  trustee.  There  is  no 
evidence  of  any  contract  for  any  security  on  any  part  of  this  estate. 
There  was  only  an  ordinary  contract  for  goods  supplied  to  a  person 
who  happened  to  be  a  trustee.  ,  The  mere  fact  that  the  customer  was 
carrying  on  an  asylum  which  was  subject  to  a  trust  nould  not  give  the 
tradesman  the  rigiit  to  be  paid  out  of  the  trust  fund.  The  trustees  of 
tlie  settlement  with  respect  to  the  asylum  were  to  sell  it,  with  certain 
consents,  and  to  deal  with  the  proceeds  of  sale  as  therein  mentioned, 
and  there  was  a  power  that  until  the  premises  should  be  sold  it  should 
be  lawful  for  Dr.  Sabben  to  carry  on  the  business  of  an  asylum  upon 
the  premises  for  his  own  benefit,  he  making  certain  payments.  Tliis 
he  did  until  July,  1875,  when  he  got  into  dililculties,  and  became  a 
liquidating  debtor,  and  then  Dr.  Symons  continued  to  carry  on  the 
asylum,  and  for  the  purposes  of  the  business  he  contracted  this  debt. 
Nothing  can  be  more  plain  than  that  on  the  face  of  the  settlement 
there  is  no  dedication  or  ap|)lication  of  the  trust  property  to  any  trade 
purposes,  and  no  provision  that  the  business  was  to  be  carried  on  by 
Ihe  trustees.  It  was  argued  tiiat  as  it  was  intended  that  the  asylum 
should  be  sold  and  tlie  goodwill  with  it,  it  was  intended  that  the  good- 
will should  be  preserved,  and  therefore  it  was  necessary  and  proper 
that  the  trustee  should  continue  to  carry  on  the  asylum  after  Dr.  Sub- 
ben  gave  it  up,  for  tlie  purpose  of  preserving  the  goodwill.  That 
might  have  been  a  very  sound  argument  if  used  between  the  trustee 
and  the  cestuis  que  trust  for  the  purpose  of  justifying  liiiu  and  showing 
that  li(!  was  entitled  to  an  indemnity,  liut  that  is  not  the  question 
here.  On  this  sc.'ttlcmcnt  it  is  clear  that  it  was  intended  that  the  asy- 
lum should  be  carried  on  by  Dr.  Subbon  and  not  l)y  the  trustees  ;  and 
that  if  he  did  not  carry  it  on,  it  should  be  sold  with  the  goodwill.  It 
is  therefore  impossible  to  compare  the  case  with  Ex  parte  Gmhuid,' 

1  fn  re  Johnson ;  Attorney-General  v  Corporation  of  Norwich,  2  My  &  Cr.  400 ; 
IJright  i;.  North,  2  Ph.  216 ;  fn  re  Lcnlio,  23  Ch.  1).  552 ;  Owen  i,-.  Delanicro,  Law  Hop. 
15  Ivi  134  ;  A'r  parte  Garland,  10  Ve».  110;  Ex  parte  EdmoMilH,  4  I).  F.  &  J.  488; 
FraHor  r.  Mtiriloch,  0  Ajip.  Caa.  855. 

2  11  Moo.  P.  C.  198.  «  10  VcB.  110. 


420  NORTON   V.   PHELPS.  [CHAP.  III. 

ami  Tn  re  Jolinson,  ^  and  the  other  cases  ■where  there  has  been  an  ex- 
press direction  by  the  testator  to  carr}'  on  a  business,  and  where  he 
specially  appropriated  part  of  his  property  for  that  purpose.  Those 
autlioritics  proceed  on  this  principle,  that  where  a  particular  part  of 
a  trust  estate  is  specifically  dedicated  to  a  particular  purpose  which 
involves  trade  debts  and  liabilities,  it  is  a  trust  to  use  it  for  that 
particular  purpose,  and  the  trustee,  though  personall}'  liable  for  the 
debts  wliich  he  contracts  in  the  course  of  the  business,  has  a  right  to 
be  paid  out  of  the  specific  assets  appropriated  for  that  purpose,  and 
the  trade  creditors  are  not  to  be  disai)pointed  of  payment  so  far  as  the 
assets  so  appropriated  are  concerned.  But  the  authorities  tend  to 
limit  that  doctrine  rather  than  to  extend  it.  The  case  of  Ex  parte 
Garland  shows  that  the  creditor  can  only  have  recourse  to  the  particu- 
'  lar  part  of  the  property  of  which  there  has  been  such  an  express  dedi- 
cation ;  and  the  right  cannot  be  extended  beyond  that,  either  in 
bankruptcy  or  in  administration.  And  that  applies  even  to  cases  in 
which  the  trustee  has  merely  done  his  duty  in  carrying  on  the  business, 
and, where  he  may  be  entitled  to  an  indemnity  for  the  expenses  incurred 
by  him.  In  re  German  Mining  Company^  and  Laboucherer.  Tupper^ 
are  cases  in  which  the  distinction  is  laid  down  between  the  rights  of 
trustees  carrymg  on  business  to  be  indemnified  for  expenses  bond  fide 
incurred  where  there  are  no  particular  assets  appropriated,  and  the 
rights  of  creditors.  Under  such  circumstances  the  creditors  have  no 
rights  against  the  trust  estate.  The  doctrine  contended  for  by  the 
appellant  is  not  only  not  supported  by  Ex  parte  Garland,  but  is  op- 
posed to  it.     The  appeal  must  therefore  be  dismissed  with  costs. 

Cotton,  L.J.     I  agree,  for  the  reasons  stated  by  the  Lord  Chancellor- 

Fry,  L.J.     I  also  agree,  for  the  same  reasons. 


M.   0.   H.   NORTON   and  Another  v.   A.   J.   PHELPS   and 

Another. 

In  the  Supre5ie  Court,  Mississippi,  April,  1877. 
[Reported  in  54  Mississippi  Reports,  467.] 

Appeal  from  the  Chancery  Court  of  Washington  Count}'. 

Hon.  E.  Stafford,  Chancellor. 

On  April  17,  1869,  M.  0.  H.  Norton  &  Co.  filed  this  bill  against 
A.  J.  Phelps  and  his  wife  Maiy  B.  Phelps,  formerly  Vick,  to  subject  a 
plantation  in  their  possession  to  an  account  for  supplies  and  raone^'  ad- 
vanced to  Henry  W.  Vick  and  Jonathan  Pearce,  trustee,  for  the  planta- 
tion, Henry  W.  Vick,  and  INIar}'  B.  Vick,  the  cestui  que  trust.     The 

M5  Ch.  D  548.  2  4  X).  M.  &  G.  19.  »  11  Moo.  P.  C.  198. 


cr^yi^ 


SECT.  VII.]  NORTON   V.   PHELPS.  421 

trustee  Pearce  was  not  made  a  party  to  the  suit  until  1870.  In 
1850  Sarah  Vick  conveyed  the  plantation  to  Pearce  in  trust,  as  in- 
dicated in  the  opinion.  Henry  W.  Vick  having  died  in  April,  1861, 
Pearce  took  possession  of  the  place  in  the  Ibllovving  June,  and  became 
guardian  of  Mary  B.  Vick,  the  cestui  que  trust.  On  Nov.  28,  18G5, 
Pearce,  as  guardian  and  trustee,  exhibited  to  the  Probate  Court  his 
account,  showing  that  the  estate  was  indebted  to  him  $3,000,  and  to 
Norton  &  Co.  $10,000,  composed  of  §G,000  contracted  by  Henry  W, 
Vick,  and  64,000  contracted  by  himself  in  the  course  of  his  guardian- 
ship. Tliis  account,  having  been  exhibited  to  Mary  B.  Vick  after  she 
became  of  age  and  before  she  married,  was  approved  by  her;  and 
Pearce  being  discharged  as  guardian,  surrendered  the  plantation  to  her, 
and  became  a  non-resident  of  this  State.  On  Oct.  3,  1866,  Norton  & 
Co.  rendered  Pearce  an  account  of  that  date,  showing  a  balance  of  * 
$7,631.16,  wliich  he  admitted  to  be  "  correct,  due  and  owing."  This 
account  was  exhibited  to  Mar}-  B.  and  A.  J.  Phelps,  who  admitted  it  to 
be  a  proper  charge  against  them,  and  a  liability  for  which  the  trust  es- 
tate was  bound.  The  complainants  appealed  from  a  final  decree  on  the 
merits  dismissing  the  bill. 

Nugtnt  Sf  McWillic,  for  the  appellants. 

W.  G.  Phelps.^  for  the  appellees.^ 

Campbkll,  J.,  delivered  the  opinion  of  tlie  court. 

In  the  case  of  Clopton  v.  Gholson,^  we  anno.unced  the  principles 
applicable  to  this  case.  These  are,  that  persons  dealing  with  a  trus- 
tee must  look  to  him  for  payment  of  tiieir  demands,  and  that,  ordi- 
narily, the  creditor  has  no  right  to  resort  to  tlie  trust  estate  to  enforce 
his  demand  for  advances  made  or  services  rendered  for  tlie  benefit  of 
the  trust  estate.  But  while  this  is  the  rule,  there  are  exceptions  to  it, 
and  where  expenditures  have  been  made  for  the  benefit  of  the  trust 
estate,  and  it  has  not  paid  for  them,  directly  or  indirectly,  and  the 
estate  is  either  indebtetl  to  the  trustee,  or  would  have  been  if  the 
trustee  had  paid,  or  would  be  if  he  should  pay  the  demand,  and  the 
trustee  is  insolvent  or  non-resident,  so  that  the  creditor  cannot  recover 
his  demand  from  him,  or  will  be  compelled  to  follow  him  to  a  foreign 
jurisdiction,  the;  trust  estate  may  be  n-aehed  directly  by  a  proceeding 
in  chancery.  The  principh;  is,  that  while  persons  dealing  as  creditors 
with  the  trustee  must  look  to  him  personally,  and  not  to  the  trust  estate, 
yet  where  the  estate  has  received  the  benefit  of  expenditures  procured 
to  lie  made  for  it  by  the  trustee,  and  it  has  not  in  any  way  I)orne  the 
burden  of  tluise  ex])f'nditur('.s  properly  chargeable  to  it.  and  to  fasten 
the  charge  upon  it  will  do  it  no  wi'oiig,  but  simply  cause  it  to  pay  what 
it  is  liable  for  to  the  trustee,  or  would  be  lialile  for  il"  he  had  paid  it,  or 
should  pay  it,  and  because  of  the  insolvency  or  non-residence  of  the 
trustee,  our  tribunals  cannot  afford  the  creditor  a  remedy  for  his  de- 

'  Till'  ;ir;;niiieiit3  of  couuael  are  omitted.  —  Ei>. 
'  53  Mi»8.  466. 


•422  NORTON  V.  piiELrs.  [chap.  III. 

maiul,  he  may  proceed  directly  against  the  trust  estate,  and  assert 
against  it  the  demand  the  trustee  could  maintain,  if  he  had  paid  or  should 
pa}'  the  claim,  and  should  himself  proceed  against  the  trust  estate. 
Generally  the  trustee  alone  must  be  looked  to.  He  stands  between 
the  creditor  and  the  estate.  He  represents  the  estate,  and  deals  for  it. 
He  is  entitled  to  be  reimbursed  out  of  the  trust  estate  for  all  disburse- 
ments rightfully  made  by  him  on  account  of  it,  and  creditors  must  get 
payment  from  him ;  but  when  the}'  cannot  do  that,  and  it  is  right  for 
the  trust  estate  to  pay  the  demand,  and  it  owes  the  trustee,  or  would 
owe  him  if  he  had  paid  or  should  pay  the  demand,  the  rule,  founded  in 
policy,  which  denies  the  creditor  access  to  the  trust  estate,  yields  to  the 
higher  considerations  of  justice  and  equity  ;  and,  in  order  that  justice 
may  be  done,  the  creditor  ma}'  be  substituted,  as  to  the  trust  estate,  to 
'  the  exact  position  which  the  trustee  would  occupy  if  he  had  paid  or 
should  pay  the  demand,  and  seek  to  obtain  reimbursement  out  of  the 
estate.  Applying  these  principles  to  the  facts  of  this  case,  it  will  be 
found  that  they  bring  it  within  the  exception  stated. 

Clearly,  if  Pearce,  the  trustee,  had  paid,  or  should  pay,  under  a  re- 
covery against  him,  the  demand  sought  to  be  enforced  against  the  trust 
estate,  he  would  be  a  creditor  of  the  estate.  He  is  a  non-resident  of 
the  State  of  Mississippi,  where  the  trust  property  is  and  where  the  debt 
was  contracted,  and  the  creditor  has  the  same  rights,  because  of  this,  as 
to  the  trust  property,  as  if  Pearce  was  insolvent.  The  reason  why  in- 
solvency of  the  trustee  is  an  element  in  the  combination  of  circumstances 
admitting  the  creditor  to  proceed  against  the  trust  estate  is  because  of 
the  inability  of  the  courts  to  coerce  an  insolvent  person  to  pay  his  liabili- 
ties ;  and  the  same  considerations  apply,  ordinarily,  in  the  case  of  the 
non-residence  of  the  trustee,  without  regard  to  his  pecuniary  condition  ; 
for  a  creditor  seeking  the  aid  of  our  courts  should  not  be  dismissed  be- 
cause he  might  pursue  a  person  to  a  foreign  land,  and  there  have  a  re- 
covery against  him.  If  he  cannot  obtain  justice  through  our  courts 
except  by  departing  in  an  exceptional  case  from  a  rule  of  policy,  to 
secure  justice  the  departure  should  be  made.  "  Trustees  have  an  in- 
herent right  to  be  reimbursed,  all  expenses  properly  incurred  in  the  ex- 
ecution of  the  trust,  and  no  express  declaration  in  the  trust  instrument 
is  requisite  to  create  that  right."  Hill  on  Trustees,  570  et  seq.  ;  2 
Perry  on  Trusts,  §  910.  The  trust-deed  in  this  case  vests  the  title  of 
the  property  in  Pearce  as  trustee,  providing  that  he  "is  to  permit  the 
said  Henry  W.  Vick,  as  agent  for  said  trustee,  ...  to  superintend, 
possess,  manage,  and  control  said  property,"  &c.,  "  with  power  to  sell 
and  exchange,"  &c.  This  conferred  very  large  powers  for  incurring 
expenditures  to  be  borne  by  the  trust  estate.  Hill  on  Trustees,  571, 
572.  Vick  was  thus  constituted  the  agent  of  the  trustee  for  the  very 
purpose  of  possessing,  managing,  and  controlling  the  trust  property. 
Debts  properly  made  l)y  Vick,  agent  and  co-trustee,  as  he  is  elsewliere 
in  the  deed  called,  in  the  management  of  the  trust  property,  were  the 


SECT.  VII.]  FAIRLAND   V.   PERCY.  423 

debts  of  Pearce,  the  trustee,  with  this  qualification  ;  nameh',  that  he  is 
exempted  by  the  deed  from  respousibilit}-  personally  for  the  acts  or 
conduct  of  Vick.^  Decree  reversed  and  cause  remanded. 


FAIRLAND  v.   PERCY  and   Others. 

In  the  Court  of  Probate,  February  9,  1875. 

[Reported  in  Law  Reports,  3  Probate  ^  Divorce,  217]. 

Sir  J.  Hanxen.'^  In  this  case  the  plaintiff  claims  to  be  a  creditor  in 
equity  of  the  estate  of  Robert  Percy,  deceased,  and  as  such  creditor 
asks  for  administration  (with  the  will  annexed)  of  the  unadniinistcred 
personal  estate  of  the  deceased.  The  testator,  by  his  will  dated  the 
9th  of  March,  1868,  appointed  William  Peacock  and  Henry  Fenwick 
trustees  and  executors,  and  gave,  devised,  and  bequeathed  to  his  said 
trustees  all  his  real  and  personal  estate  upon  trust  to  permit  and  suffer 
his  wife  to  receive  the  rents  and  profits  and  to  carry  on  his  business  as 
a  tailor  for  the  term  of  her  natural  life,  if  she  should  so  long  remain  his 
widow,  and  from  and  after  the  decease  or  second  marriage  of  his  said 
wife  he  directed  the  trustees  to  sell  and  convert  into  money  all  parts  of 
his  estate  not  consisting  of  money,  and  to  divide  the  proceeds  amongst 
his  children  as  tenants  in  common.  "William  Peacock  and  Henry  Fen- 
wick refused  to  accept  the  trusts  of  the  will,  and  duly  renounced  pro- 
bate, and  thereupon  administration  with  the  will  annexed  of  the  personal 
estate  and  effects  of  the  deceased  was  granted  to  the  widow,  who,  under 
the  authority  given  to  lior  to  carry  on  the  business,  continued  to  do  so 
down  to  the  time  of  her  death  in  January,  1874.     She  did  not  marry  a 

'  Askew  V.  Myrick,  54  Ala.  30  ;  Dickinson  v.  Cnnniff,  G.')  Ala.  ."iRl  ;  Mundon  v. 
Bailev,  70  Ala.  63  ;  Riack.shtar  v.  Biirko,  74  Ala.  239  ;  Moselcy  v.  Nurniaii,  74  Ala 
422  ;  HaLcTsham  i?.  Hnguoiiin,  H.  M.  Tharlt.  376  ;  Wylly  v.  Collins,  9  Ga.  223  ;  Sat- 
tprwhite  v.  Heall,  28  Ga.  .'")2.j  ;  Gandy  r.  RaMiitt,  .'iG  Ga.  640  (srinhli) ;  Malonc  r.  Riiice, 
60  Ga.  l.'>2  ;  Robert  v.  Tifft,  60  (ia.  .')66  ;  Kuperrnan  v.  McGoheo,  63  Ga.  2.50;  Jackson 
V.  Poole,  73  Ga.  801  ;  Greenfield  v.  Vason,  74  Ga.  126;  Clojiton  v.  Gholson,  53  Mi.is. 
466;  ((■oini)are  Pool  v.  FAh^,  64  Miss,  .'i.').'))  ;  Hnslujiip;  /;.  Taylor,  82  Mo.  660;  Cater  c. 
Kverleigh,  4  Des.s.  19;  .lamcH  i;.  Mayrant,  4  Dcss.  .091  ;  MontKomcry  v.  Evcrlcigh,  1 
McC.  i!67;  Dougla-s  >:  Fra/.cr,  2  McC.  Cli.  10.') ;  Gnerry  v.  Capers,  Hail.  Kq.  1.59,  162; 
Manifrault  r.  1)<xh,  Bail  K(|.  2H3,  290;  Hoiisli.-xw  r.  Freer,  Bail.  Kq.  311,317.  3IS, 
Ma^wood  '•.  Jolui.wn,  I  Hill.  C"h.  224;  Tennant  r.  Stoney,  1  Rich,  Kq.  222,  263, 
Adams  v.  .Mackey.  6  Rich.  Eq.  7.5  ;  Owens  v.  Mitchell.  38  Tex.  .588  Acciml. 

Jt  is  rerojriii/ed  in  ino«t  of  tlio  ca.sps  cited  in  the  procodiiifj  parapniidi  lli.it  the 
creditor's  recovery  against  the  frii»t  e.Hf.ate  will  ho  defeated  in  wlmle  or  in  jiart  if 
the  trustee  is  in  arrears  to  the  trust  estate.  But  in  Wylly  v.  Collins,  9  Ga.  223,  Mau- 
derson'sApp.  113  Pa.  631.  the  creditor  was  allowed  to  charge  the  trust  estate,  nlthouj^h 
the  trn.'ttee  w.as  a  defaulter  to  an  amount  exceeding  the  creditor's  claim. 

See  15  Am.  L.  Rev.  449  for  a  discussion  of  the  question  involved  in  the  cases  cited 
in  this  note.  —  Kn. 
^  bee  snpra,  70,  n.  1 .  —  Ed. 


424  FAIRLAND   V.   PERCY.  [CIIAP.  III. 

socoiul  tiiiic.  "While  she  so  carried  on  the  business,  the  phiintiff  and 
his  partner  (trading  under  the  style  of  Stott  &  Co.)  supplied  goods  to 
the  widow  in  the  way  of  the  said  trade  of  a  tailor,  to  the  amount  of  £391> 
16s.  id.,  and  this  debt  remains  wholly  unpaid,  and  the  plaintiff  and  his 
partner  hold  no  security  for  any  part  of  it.  The  plaintiff  claims  in  re- 
spect of  this  debt  to  be  an  equitable  creditor  of  the  estate  of  Robert 
Perc3%  deceased.  All  parties  interested  in  the  estate  of  the  deceased 
have  been  cited,  but  do  not  appear.  It  appears  that  Martha  Percy, 
the  widow  of  the  deceased,  died  wholly  insolvent,  and  left  no  property' 
out  of  which  the  plaintiff's  debt  can  be  satisfied.  There  can  be  no 
doubt  that  IMartha  Percy  was  originally  the  legal  debtor  of  the  plaintifTs 
firm,  and  that  had  she  or  her  estate  been  solvent  thej'  would  have  been 
bound  to  look  to  her  or  her  estate  for  payment,  and  that  no  claim  could 
have  been  made  against  the  estate  of  the  deceased.'  But  the  cases 
cited  in  argument  show  that  where  a  testator  b}'  his  will  directs  that 
his  business  ma}'  be  carried  on,  and  that  his  personal  estate  shall  be 
used  as  capital  with  which  to  do  so,  the  persons  who  after  his  death  be- 
come creditors  of  the  business,  in  addition  to  the  personal  responsibility 
of  the  individuals  who  give  the  order  for  the  goods  or  otherwise  contract 
the  debt,  are  entitled  in  equit}-  to  claim  against  the  estate  of  the  testator, 
to  the  extent  that  he  authorized  it  to  be  used  in  the  business.''^ 

This  is  clearly  laid  down  b}'  Lord  Eldon  in  Ex  parte  Garland  :  ^  "As 
to  creditors  subsequent  to  the  death  of  the  testator,  in  the  first  place, 
they  may  determine  whether  the}'  will  be  creditors.  Next,  it  is  admitted 
they  have  the  whole  fund  that  is  embarked  in  the  trade,  and  in  addi- 
tion the}'  have  the  personal  responsibility  of  the  individual  with  whom 
they  deal,  the  only  security  in  ordinary  transactions  of  debtor  and 
creditor.  They  have  something  very  like  a  lien  upon  the  estate  em- 
barked in  the  trade.  They  have  not  a  lien  upon  anything  else."  The 
same  principle  is  laid  down  in  the  other  cases,  the  only  one  of  which  I 
need  refer  to  is  that  of  Owen  v.  Delamere,*  recently  decided  by  Sir  J. 
Bacon,  V.  C.  In  that  case  a  creditor  of  a  business,  carried  on  after  the 
death  of  a  testator  with  a  portion  of  his  estate  in  accordance  with  the 

1  Owen  V.  Delamere,  15  Eq.  134  ;  Laible  v.  Ferry,  32  N.  J.  Eq.  79  Accord.  — Y^n. 

2  Ex  parte  Garland,  10  Ves.  110;  Ex  parte  Richardson,  3  Mad.  138;  Thompson 
V.  Andrews,  1  M.  &  K.  116  ;  Cutbush  v.  Cuthush,  1  Beav.  184;  Ex  parte  Butterfield, 
De  Gex,  570 ;  McNeillie  v.  Acton,  4  D.  M.  &  G.  744  ;  Ex  parte  Westcott,  9  Ch.  626  ; 
Owen  V.  Delamere,  15  Eq.  134  ;  Re  Sumner,  W.  N.  (1884),  121  ;  Re  Firmin,  57  L.  T. 
Rep.  45 ;  Scholefield  v.  Eichelberger,  7  Pet.  586  ;  Burwell  v.  Cawood,  2  How.  560 ; 
Smith  V.  Ayer,  101  U.  8.  320;  Jones  v.  Walker,  103  U.  S.  444;  Cook  v.  Administra- 
tor, 3  Fed.  Rep.  69  ;  Edgar  v.  Cook,  4  Ala.  588  ;  State  v.  Hunter  (Ark.,  1892),  19  S. 
W.  R.  496 ;  Pitkin  v.  Pitkin,  7  Conn.  307 ;  Blodgett  v.  American  Bank,  49  Conn. 
9  ;  Wilson  v.  Fridenbnrg,  21  Fla.  386  ;  Stanwood  v.  Owen,  14  Gray,  195 ;  Bacon  v. 
I'omeroy,  104  Mass.  577,  585  ;  Mason  v.  Pomeroy,  151  Mass.  164  ;  Hagan  v.  Barksdale, 
44  Miss.  186  ;  Brasfield  v.  French,  59  Miss.  632  ;  Laible  v.  Ferry,  32  N.  J.  Eq.  791  ; 
Willis  V.  Sharpe,  113  N.  Y.  586;  Stewart  v.  Robinson,  115  N.  Y.  336  ;  Delaware  Co.  v. 
Gilbert,  44  Hun,  201  ;  Lucht  v.  Behrens,  28  Oh.  St.  231  ;  Gratz  v.  Bayard,  11  S.  &  R. 
41  ;  Mathews  v.  Stephenson,  6  Pa.  496 ;  Laughlin  v.  Lorenz,  48  Pa.  275 ;  Davis  u 
Christian,  15  Grat.  11  Accord.  —  Ed. 

3  10  Ves,  110.  *  Law  Rep.  15  Eq.  134. 


SECT.  VII.]  FAIKLAND   V.    PERCY.  425 

directions  of  his  will,  filed  a  bill  for  the  administration  of  the  testator's 
personal  estate,  as  in  a  creditor's  suit.  This  bill  was  dismissed  b}-  the 
Vice-Chancellor  on  the  ground  that  as  it  appeared  that  the  persons  who 
carried  on  the  business  and  had  contracted  the  debt  were  solvent,  the 
plaintift"s  remed}'  was  by  action  at  law  against  them,  and  not  b}-  an  ad- 
ministration suit  in  the  Court  of  Equity.  And  the  Vice-Chancellor  more 
than  once  points  out  that  the  case  would  be  different  if,  as  in  the  present 
case,  the  person  primarily  liable  were  insolvent.  He  says:  "An  ex- 
ecutor authorized  to  cany  on  a  business,  who  carries  it  on,  is  liable  for 
every  shilling  on  every  contract  he  enters  into ;  besides  that,  if  he  be- 
comes bankrupt,  the  persons  who  have  trusted  him  have  a  right  to  say 
that  that  portion  of  the  trust  estate  which  was  committed  to  him  for  the 
purpose  of  carrying  on  the  business  shall  not  be  the  subject  of  general 
administration."  And  again  :  "  There  can  be  no  doubt  about  the  prin- 
ciples on  which  a  Court  of  Equity  deals  with  such  a  case  :  the  Court 
will  give  effect  to  the  trust  which  has  been  created  by  the  testator,  and 
will  keep  separate  and  applicable  only  to  the  purposes  of  the  trust  that 
estate  which  the  testator  designated  and  directed  to  be  emplo3'ed  for 
that  purpose.  As  Lord  Eldon  points  out  in  £Jx  parte  Garland,'  the 
creditor  has  not  only  the  personal  remedy  against  the  executor,  but  he 
has  a  right  also,  if  that  should  fail,  to  come  against  the  trust  estate : 
and  so  here,  if  an  action  had  been  brought  against  the  defendants,  and 
a  fruitless  judgment  had  been  recovered  against  them,  there  would  have 
been  a  right  to  go  against  the  trust  estate  which  the  testator  committed 
to  the  executors  if  it  should  be  in  existence  in  specie."  I  think  that 
these  passages  establish  that  the  plaintiff,  in  the  existing  state  of  facts, 
is  an  equitable  creditor  of  the  personal  estate  of  Robert  Percy,  the  de- 
ceased, in  respect  of  the  debt  which  the  testator's  widow  contracted  in 
the  course  and  for  the  purpose  of  carrying  on  the  business.  In  arriving 
at  the  conclusion  that  administration  may  be  granted  to  the  plaintilf  as 
an  equitable  creditor,  I  am  fortified  by  the  decisions  in  analogous  cases 
where  administration  has  been  granted  to  persons  as  creditors  of  a  de- 
ceased's estat<,'  in  respect  of  debts  not  contracted  by  the  deceased  or  in  his 
lifetime.  I  allude  to  the  cases  of  undertakers  and  those  who  have  been 
at  the  expense  of  burying  the  deceased  :  Spitty's  Case  ;  *  Newcomlio  v. 
Beloe.'  It  will  be  seen  that  my  decision  is  ba.sed  on  the  assumption 
that  the  estate  of  Martha  Perc}-,  the  widow,  is  insolvent.  As  no  oppo- 
sition has  been  offered  to  the  motion,  tlie  fa(;t  of  this  insolvency  rc^^ts 
on  the  affidavit  of  the  applicant ;  but  though  the  estate  may  be  insolvent, 
it  is  liighly  imiirobable  that  it  is  ab.solutely  nil.  On  the  contrary,  it  is 
highly  probalde  that  there  must  be  some  trade  debts  due  to  the  widow, 
and  not  to  the  estate  of  her  deceased  husband  ;  and,  furtlicr.  it  is  pos- 
sible she  may  have  other  creditors  than  trade  creditois.  I  think,  there- 
fore, it  is  necessary  that  the  plaintilf  should  in  tlie  first  place,  as  a  legal 

>  10  Ves.  no. 

'■'  Cootc's  Practice  of  tlio  f'ourt  oi  I'robato,  Gth  cd.  ]>.  94. 

»  Law  Kep.  1  P.  &  M.  314. 


426  IN   RE  JOHNSON.  [CIIAP.  III. 

creditor  of  the  widow,  take  out  adniinislration  to  her  estate.  And 
further,  as  the  interests  of  persons  not  before  the  Court  may  be  affected, 
I  shall  impose  the  condition  that  justifying  security  be  given. 


In  re  JOHNSON. 

SHEARMAN  v.  JOHNSON. 

In  the  High  Court  of  Justice,  Chancery  Division,  July  19,  1880, 

[Reported  in  15   Chancery  Division,  548.] 

AnjouRNED  Summons.  Peter  Johnson,  by  his  will,  dated  the  27th  of 
May,  1873,  appointed  the  defendant  Robinson  and  another  his  execu- 
tors ;  and,  after  making  certain  specific  and  pecuniary  bequests,  and 
directing  the  payment  of  bis  debts,  and  funeral  and  testamentary  ex- 
penses, he  directed  his  executors,  as  soon  as  might  be  after  his  decease, 
to  collect,  get  in,  and  receive  all  debts  owing  to  him  in  respect  of  the 
business  of  a  tailor  and  robe-maker  then  carried  on  by  him  at  Cam- 
bridge, and  also  all  other  debts  owing  to  him  not  connected  with  the 
business  then  carried  on  by  him  in  London  in  partnership  with  Thomas 
Sadler,  and  (subject  to  the  provisions  thereinafter  contained)  to  sell 
and  convert  into  money  all  his  Cambridge  stock  in  trade,  and  stand 
possessed  of  the  proceeds,  and  all  other  his  personal  estate  and  effects 
whatsoever  (except  his  share  and  interest  in  the  London  business)  not 
thereinbefore  specifically  bequeathed,  upon  trust  to  pay  one  equal 
fourth  part  thereof  to  and  amongst  such  of  the  children  of  his  de- 
ceased sister  Catherine  Neill  (including  his  nephew  John  Neill)  as 
should  be  living  at  the  time  of  his  decease  ;  one  other  equal  fourth  part 
to  the  plaintiff ;  and  the  remaining  two  fourth  parts  to  the  several  per- 
sons therein  named.  And  the  testator  declared  that  in  case  his  nephew 
John  Neill  should  be  under  the  age  of  twenty-one  years  at  the  time  of 
his  decease,  it  should  be  lawful  for  his  said  executors,  upon  the  request 
of  the  said  John  Neill,  to  postpone  the  sale  of  his  Cambridge  stock  in 
trade  and  allow  his  said  business  of  a  tailor  and  a  robe-maker  at  Cam- 
bridge to  be  carried  on  by  the  said  John  Neill,  for  his  own  benefit, 
under  the  supervision  of  his  said  executors,  until  such  time  as  the  said 
John  Neill  sliould  attain  twenty-one,  and  during  such  period  should  use 
such  part  of  the  share  of  the  said  John  Neill  in  his  residuary  personal 
estate  as  might  be  requisite  for  the  due  carrying  on  of  the  said  busi- 
ness. And  he  directed,  in  case  that  provision  was  carried  into  effect, 
that  an  inventory  and  valuation  of  all  his  stock  in  trade  at  Cambridge 
should  be  taken  immediately  after  his  decease,  and  that  on  the  said 
.John  Neill  attaining  his  age  of  twenty-one  years  he  should  have  the 
option  of  taking  the  then  existing  stock  at  the  amount  of  such  valua- 
tion, and  that  if  he  declined  to  do  so,  and  the  said  stock  was  sold,  then 


SECT.  VII.]  IN   RE  JOHNSON.  427 

the  said  John  Neill  should  bring  the  amount  of  the  proceeds  of  such 
sale  into  hotchpot  on  the  calculation  for  the  distribution  of  the  resi- 
duary personal  estate.  The  testator  then  gave  certain  directions  as  to 
the  winding  up  of  his  partnership  in  the  London  business,  and  directed 
that  his  share  and  interest  therein  should  fall  into  his  residuary  per- 
sonal estate. 

The  testator  died  on  the  25th  of  November,  1875,  and  his  will  was 
proved  by  the  defendant  Robinson  alone,  the  other  executor  haviug 
renounced.  There  were  living  at  the  testator's  death  two  children  of 
his  deceased  sister  Catherine,  one  of  whom  was  the  said  John  Neill, 
then  an  infant. 

After  the  testator's  death  the  defendant  did  not  get  in  the  book  debts 
of  the  Cambridge  business  as  directed  by  the  will,  but  he  continued  to 
carry  on  the  business  in  his  own  name  until  the  30th  of  June,  1878, 
when  John  Neill  attained  twenty-one ;  he  also  continued  the  manage- 
ment of  the  testator's  share  in  the  London  business.  For  the  purpose 
of  carrying  on  the  Cambridge  business,  the  defendant  advanced  from 
time  to  time  several  sums  of  money  out  of  John  Neill's  share  in  the 
testator's  personal  estate,  which  sums  were  repaid  out  of  the  business 
in  the  ordinary  course  of  carrying  it  on,  but  the  defendant  kept  no 
separate  banking  account  for  the  business. 

An  action  having  been  instituted  by  one  of  the  residuary  legatees, 
and  a  judgment  obtained  for  the  administration  of  the  testator's  estate, 
it  was  found,  on  taking  the  defendant's  accounts,  that  there  was  due 
from  him  a  balance  of  £764,  16s.  Id.  in  respect  of  profits  from  the 
Cambridge  business,  and  also  a  balance  of  £1,668,  Ss.  Id.  in  respect 
of  the  general  personal  estate  of  the  testator,  including  his  share  in 
the  London  business. 

Amongst  the  creditors  who  made  claims  against  the  estate  under  the 
judgment  were  several  persons  who  had  supplied  the  defendant  with 
goods  in  the  course  of  his  carrying  on  the  Cambridge  business  sul)se- 
quently  to  the  testator's  death  ;  but  these  claims  being  disallowed  by 
the  chief  clerk,  summonses  were  taken  out  by  three  of  these  creditors 
for  the  purpose  of  establishing  their  claims.  One  of  the  sumnionses 
was  by  a  firm  of  Standen  &  Co.,  woollen  warehousemen,  and  asked 
that  a  sum  of  £160  o.s.  10*/.  due  to  tliem  for  goods  sold  and  delivereil 
to  the  defendant,  the  executor,  in  the  course  of  his  carrying  on  the 
trade  or  business  of  a  tailor  from  the  time  of  the  testator's  death  down 
to  the  30th  of  June,  1878,  might  be  forlliwith  paid  to  tiiem  by  the  said 
executor  out  of  the  share  of  the  said  .John  Neill  in  the  testator's  resi- 
duary personal  estate  ;  or  otherwise  tliaL  it  might  be  declared  that  the 
applicants  were  entitled  to  a  lien  on  the  portion  of  the  estate  of  the 
said  testator  which  on  tlie  30th  of  Jinu;,  1H78,  was  embarked  in 
the  carrying  on  as  aforesaid  of  the  said  testator's  business ;  and  tliat 
an  inquiry  might  be  directed  for  the  i)urpose  of  ascertaining  what  were 
the  assets  of  the  said  testator  which  were  so  subject  to  the  lieu  of  the 
applicants. 


423  IN   RE   JOHNSON.  [CIIAP.  III. 

The  two  other  summonses,  which  were  by  creditors  for  an  aggregate 
amount  of  upwards  of  I'GOO,  asked  that  they  might  be  at  liberty  to 
bring  iu  their  claims  against  the  assets  of  the  business  carried  on  by 
the  defendant  under  the  powers  of  the  will,  in  respect  of  debts  incurred 
by  him  to  the  applicants  in  the  course  of  such  business,  and  that  such 
assets  might  be  applied  in  payment  of  what  should  be  found  due  to 
the  applicants  in  respect  of  tlieir  debts.  Upon  the  further  considera- 
tion of  the  action  all  three  summonses  came  on  for  hearing. 

It  appeared  that  the  defendant,  the  executor,  was  insolvent. 

Grosveyxor  Woods^  for  Messrs.  Standen's  summons.^ 

Speed  and  Maidlmv,  for  the  other  two  summonses. 

R.  F.  Xorton,  for  Neill,  was  not  called  upon. 

E.  W.  Byrne,  for  the  plaintiff. 

Seicard  Bryce  and  E.  C.  Austin,  for  other  parties. 

The  defendant  did  not  appear  by  counsel. 

Jessel,  M.  R.  I  shall  dismiss  these  summonses,  but  T  will  give  the 
creditors  liberty  to  present  a  petition.  I  will  not  distribute  the  assets 
until  they  have  presented  a  petition :  that  seems  to  me  the  regular 
course,  but  at  present  I  do  not  see  that  they  are  entitled  to  anything. 
That  seems  to  have  been  the  course  taken  in  several  cases,  and  I  think 
it  is  the  right  course,  for  the  creditors  are  not  parties  to  this  suit  at  all. 
They  ought  to  come  in  under  a  petition.  With  regard  to  the  point  that 
has  been  argued,  I  understand  the  doctrine  to  be  this,  that  whei-e  a 
trustee  is  authorized  by  a  testator,  or  by  a  settlor,  —  for  it  makes  no 
difference,  —  to  carry  on  a  business  with  certain  funds  which  he  gives 
to  the  trustee  for  that  purpose,  the  creditor  who  trusts  the  executor  has 
a  right  to  say,  "  I  had  the  personal  liability  of  the  man  I  trusted,  and 
I  have  also  a  right  to  be  put  in  his  place  against  the  assets ;  that  is,  I 
have  a  right  to  the  benefit  of  indemnity  or  lien  which  he  has  against 
the  assets  devoted  to  the  purposes  of  the  trade."  The  first  right  is  his 
general  right  by  contract,  because  he  trusted  the  trustee  or  executor : 
he  has  a  personal  right  to  sue  him  and  to  get  judgment  and  make  him 
a  bankrupt.  The  second  right  is  a  mere  corollary  to  those  numerous 
cases  in  equity  in  which  persons  are  allowed  to  follow  trust  assets. 
The  trust  assets  having  been  devoted  to  carrying  on  the  trade,  it  would 
not  be  right  that  the  cestui  rpxe  trust  should  get  the  benefit  of  the  trade 
without  paying  the  liabilities  ;  therefore  the  court  says  to  him.  You 
shall  not  set  up  a  trustee  who  may  be  a  man  of  straw,  and  make  him  a 
bankrupt  to  avoid  the  responsibility  of  the  assets  for  carrying  on  the 
trade  :  the  court  puts  the  creditor,  so  to  speak,  as  I  understand  it,  in  the 
place  of  the  trustee.  But  if  the  trustee  has  wronged  the  trust  estate, 
that  is,  if  he  has  taken  money  out  of  the  assets  more  than  sufficient  to 
pay  the  debts,  and  instead  of  applying  them  to  the  payment  of  the 
debts  has  put  them  into  his  own  pocket,  then  it  appears  to  me  there  is 
no  such  equity,  because  the  cestuis  que  trust  are  not  taking  the  benefit. 

^  The  argument  of  Woods  is  omitted.  —  Ed. 


SECT.  VII.]  IN   RE   JOHNSON.  429 

The  trustee  having  pocketed  the  money,  the  title  of  the  creditor,  so  to 
speak,  to  be  put  in  the  place  of  the  trustee,  is  a  title  to  get  nothing, 
because  nothing  is  due  to  the  trustee.  It  does  not  appear  to  me  that 
in  that  case  the  creditor,  wlio  has  never  contracted  for  anything,  who 
has  only  got  the  benetit  of  this  equity,  if  I  may  say  so,  by  means  of 
the  trustee,  through  the  lucky  accident  of  there  being  a  trust,  ought  to 
be  put  in  a  better  position  than  any  other  creditor.  I  do  not  see  that 
any  judge  has  said  so. 

If  we  start  with  Ex. iKirte  Garland,  what  Lord  Eldon  says  is  this: 
"It  is  admitted  they  [the  creditors]  have  the  whole  fund  that  is 
embarked  in  the  trade  "  —  that  is,  as  between  themselves  and  the  ex- 
ecutors the  creditors  can  claim  the  application  of  the  fund ;  "  and  in 
addition  they  have  the  personal  responsibility  of  the  individual  with 
whom  they  deal :  the  only  security  in  ordinary  transactions  of  debtor 
and  creditor."  [His  Lordship  then  read  down  to  the  words  "  security 
for  the  creditors  on  the  trade,"  ^  and  continued :]  Then,-  after  ex- 
pressing his  strong  opinion  that  only  the  property  declared  to  be 
embarked  in  the  trade  should  be  answerable  to  the  creditors  of  the 
trade,  he  says,  "If  I  am  not  bound  by  decision,  the  convenience  of 
mankind  requires  me  to  hold  that  the  creditors  of  the  trade,  as  such, 
have  not  a  claim  against  the  distributed  assets,  in  the  hands  of  third 
persons  under  the  direction  of  the  same  will,  which  has  authorized  the 
trade  to  be  carried  on  for  the  benefit  of  other  persons."  That  does  not 
decide  the  point  I  have  mentioned  at  all.  All  that  it  decides  is  that 
the  claim  of  the  creditors  is  limited  to  the  assets  devoted  to  trade. 
What  their  right  against  those  assets  is.  Lord  Eldon  does  not  decide. 

Then  we  have  a  case  which  I  think  comes  nearest  to  the  present 
case,  Ex  parte  Edmonds."  Lord  Justice  Turner  says  tiiis  :  ■*  "  The  case 
of  Ex  parte  Garland  and  the  other  cases  referred  to  in  the  argument 
have  not,  in  my  opinion,  any  application  to  the  present  case.  Tliey 
proceed  upon  the  principle  that  the  executor  or  trustee  directed  to  carry 
ou  the  business  having  the  riglit  to  resort  for  his  indemnity  to  the 
assets  directed  to  be  enij)loy('d  in  carrying  it  on,  tiie  creditors  of  the 
trade  are  entitled  to  the  benetit  of  that  right,  and  thus  become  creditors 
of  the  fund  to  which  the  executor  or  trustee  has  a  right  to  resort." 

Having  read  those  two  authorities,  which,  being  the  decisions  of  a 
Lord  Chancellor  and  of  the  Court  of  Appeal  in  Chancery,  would  be 
binding  on  me,  I  need  only  say  that  I  do  not  think  tiie  point  arises  in 
any  of  the  subsequent  cases,  or  was  the  subject  of  consideration  in 
them.  Owen  v.  Delamere,''  which  contains  a  mere  dictum  of  Vice- 
Chancellor  Hacon,  but  still  of  course  entitled  to  great  respect  if  it  did 
differ  —  whicli  I  do  not  think  it  does — fro!ii  wliat  Lord  .lusticc  THriier 
laid  down  in  Ex  j)arte  E<lmoii(lH'"'  as  tiie  true  principle,  would  not  i)e 
binding  ui»on  me  ;  but  I  do  not  think  it  is  different,  because  Vice  Chau- 

'   10  Ves.  121.  2  10  Vpb.  122.  «  4  1).,  F.  &  J.  488. 

♦  4  I).,  F,  &  J.  498.  6  Law  Uep.  15  Eq    1.34.  <^  4  I).,  F.  &  J.  488. 


430  IN    RE  JOHNSON.  [CHAP.  Ill, 

cellor  BacoD  is  directing  his  attention  to  the  point  decided  in  Ex  parte 
G:irh\ud,  that  is,  that  the  creditors  have  no  right  to  go  beyond  assets 
devoted  to  trade.  Tlie  nature  of  the  right  as  against  those  assets  is 
not  adverted  to ;  that  is  pUiin  ;  for  after  saying  that  Ex  parte  Garland 
'*  contains  a  clear,  distinct,  and  luminous  cxiTosition  of  law  on  the  sub- 
ject," —  which  it  does  upon  the  point  that  it  is  not  the  general  estate  of 
the  testator  which  is  liable,  but  only  so  much  as  he  has  authorized  to 
be  employed  in  the  business,  —  the  Vice  Chancellor  says,^  "  The  court 
will  give  effect  to  the  trust  which  has  been  created  by  tiie  testator,  and 
will  keep  separate  and  applicable  only  to  purposes  of  the  trust  that 
estate  which  the  testator  designated  and  directed  to  be  employed  for 
that  purpose."  It  is  merely  repeating  Ex  parte  Garland  without  the 
slightest  reference  to  the  mode  in  which  the  claim  is  to  be  enforced. 

The  same  may  be  said  of  the  case  of  Fairland  v.  Percy.  I  dispose 
of  that  by  saying  that  Sir  James  Hannen  goes  no  further,  and  that  he 
does  not  consider  the  second  point  at  all. 

The  question  raised  by  the  second  point  —  that  is,  what  is  the  right 
to  resort  —  is  not  treated  of,  as  far  as  I  can  see,  in  any  reported  de- 
cision except  in  the  case  of  Ex  parte  Edmonds.  I  think  it  is  infereu- 
tially  referred  to  in  Mr.  Justice  Lindley's  book,  where  I  think  he  means 
to  say  the  same  that  Lord  Justice  Turner  said,  although  I  must  say, 
with  great  deference  to  Mr.  Justice  Lindley,  it  might  have  been  more 
clearly  put.  Nothing  can  be  clearer  than  the  way  in  which  Lord  Jus- 
tice Turner  puts  it ;  it  is  simply,  as  he  says,  the  right  to  resort  for  in- 
demnity to  the  assets  actually  dii-ected  to  be  employed ;  and  the  cred- 
itor is  entitled  to  the  benefit  of  that  right. 

What  Mr.  Justice  Lindley  says  is  this :  ^  [His  Lordship  then  read 
the  passage  commencing,  "  If  an  executor  of  a  deceased  partner,"  and 
ending,  "  lien  on  the  assets  of  the  deceased  employed  therein,"  and 
continued  :] 

I  am  not  sure  that  Mr.  Justice  Lindley  had  in  view  the  remarks  of 
Lord  Justice  Turner  in  Ex  parte  Edmonds,^  for  he  does  not  cite  the 
case  ;  but  he  may  have  arrived  at  the  same  conclusion  independently. 

The  only  other  text-book  that  I  have  been  looking  at  on  this  point  is 
the  last  edition  of  Williams  on  Executors.''  After  stating  that  a  trade 
18  not  transmissible,  but  is  put  an  end  to  by  the  death  of  the  trader,  it 
says  :  "  Executors,  therefore,  have  no  authority  in  law  to  carry  on  the 
trade  of  their  testator,  and  if  they  do  so,  unless  under  the  protection 
of  the  Court  of  Chancery,  they  run  great  risk,  even  although  the  will 
contains  a  direction  that  they  should  continue  tlie  business  of  the  de- 
ceased." Then  it  says,*  "  The  testator  may,  by  his  will,  qualify  the 
power  of  his  executor  to  carry  on  trade,  and  limit  it  to  a  specific  part 
of  the  assets,  which  he  may  sever  from  the  general  mass  of  his  prop- 
erty for  that  purpose  ;  and  then  in  the  event  of  the  bankruptcy  of  the 

1  Law  Rep.  15  Eq.  139. 

2  Lindley  on  Partnership  (3d  ed.),  p.  1103.  ^  4  j^    p  ^  j  453 
*  8th  ed.  p.  1798.                                                        '  Page  1800. 


SECT.  VII.]  IN   RE  JOHNSON.  431 

executor,  the  rest  of  the  assets  will  not  be  affected  by  the  commission, 
although  the  whole  of  the  executor's  private  property  will  be  subject 
to  its  operation,"  Although  the  author  cites  Ex  parte  Garland,  he 
does  not  appear  to  me  to  deal  directly  with  the  question  I  have  to  deal 
with,  which  is,  AVhat  is  the  nature  of  the  right  of  the  creditors  against 
the  assets  specifically  appropriated  by  the  testator  for  the  purpose  of 
carrying  on  the  trade  ?  I  am  thei-efore  really  thrown  back  on  the 
authority  of  Lord  Justice  Turner.  If  the  right  of  the  creditors  is, 
as  is  stated  by  Lord  Justice  Turner,  the  right  to  put  themselves,  so 
to  speak,  in  the  place  of  a  trustee,  who  is  entitled  to  an  indemnity, 
of  course  if  the  trustee  is  not  entitled,  except  on  terms  to  make  good 
a  loss  to  the  trust  estate,  the  creditors  cannot  have  a  better  right. 
They  do  get  some  additional  benefit  so  as  to  avoid  a  supposed  in- 
justice ;  but  the  injustice  to  be  avoided  is  the  injustice  of  the  cestui 
que  trust  walking  off  with  the  assets  which  have  been  earned  by  the 
use  of  the  property  of  the  creditor ;  but  where  the  cestui  que  trust  does 
not  get  that  benefit,  there  is  no  injustice  as  between  him  and  the  cred- 
itors, and  there  is  no  reason  for  the  court  interfering  at  the  instance  of 
the  creditors  to  give  them  a  larger  right  than  that  they  bargained  for, 
namely,  their  personal  right  against  the  trustee.  It  appears  to  me, 
therefore,  that  if  the  trustee  has  no  such  right  in  such  a  case,  they 
have  none  here. 

The  particular  case  before  me  is  peculiar.  It  appears  by  the  evi- 
dence, and  it  is  the  fact,  that  the  executor  carried  on  the  Cambridge 
business  in  his  own  name  and  not  in  the  name  of  the  infant,  which  was 
strictly  in  accordance  with  the  terms  of  the  will,  for  I  do  not  suppose' 
he  could  carry  it  on  in  any  other  way.  By  the  will  the  testator  allowed 
him  to  make  use  of  one-eighth  of  the  residue  forthe  purpose  of  carry- 
ing on  the  business  on  behalf  of  the  legatee,  who  was  an  infant  of  the 
name  of  Neill,  (hiring  his  minority  ;  then  Neill,  on  his  attaining  twenty- 
one,  was  to  be  allowed  to  take  the  stock  in  trade,  if  he  thought  fit,  not 
at  its  then  value,  but  at  its  value  at  the  testator's  death,  and  all  the  rest 
fell  into  residue.  But  the  execjitor  and  trustee  did  not  follow  the  will, 
for,  as  I  said  before,  he  carried  on  business  in  his  own  name  as  ex- 
ecutor, and  used  the  assets  then  in  the  })usiness.  He  did  not  do  what 
tlje  testator  told  him  to  do,  namely,  collect  the  book  debts  and  throw 
them  into  general  residue  with  the  business,  .nnd  tiicn  make  use  of  one- 
eighth  of  the  residue  ;  he  kept  no  separate  banking  account  so  as  to 
show  the  actual  sums  of  money  used  in  the  business,  but  he  carried  on 
the  business  as  it  had  been  carried  on  befori-.  Whether  that  makes 
any  difference  or  not  it  is  iinmaterial  now  to  inquire,  but  that  is  what 
he  actually  did.  Ili  carried'on  the  business,  and  in  carrying  it  on  he 
received  £7ri4  HJ.s.  1^^  more  profit  than  he  has  accounted  for,  and  this 
amount  he  owes  the  estate.  liesides  that,  he  was  carrying  on  the  Lon- 
don business  Ijelonging  to  the  estate.  From  that  and  other  sourctes  he 
has  received  £1,G6H  3j<i.  Irf,  more  than  he  has  accounted  for;  so  that 
he  is  a  very  large  defaulter.     It  is  manifest  that  he  could  not  take  cue 


432  IN   RE   JOIIKSON.  [chap.  III. 

ponny  out  of  Uiis  estate  by  way  of  iudcumity  uutil  he  made  good  his 
default. 

Therefore,  unless  the  creditors  can  be  in  a  position  to  show  —  as  to 
which  there  is  no  evidence  before  me  —  that  there  were  profits  from 
carrying  on  the  business  to  an  amount  exceeding  the  deficit,  so  that 
something  was  gained  by  the  use  of  these  assets,  it  does  not  appear  to 
me  that  they  can  be  entitled  to  anything. 

As  the  facts  on  this  point  do  not  appear,  I  will  give  the  creditors 
liberty  to  present  a  petition  within  a  limited  time,  if  they  think  they 
can  support  it,  and  I  will  not  allow  the  assets  to  be  distributed  until 
they  have  had  time  to  present  their  petition.  I  do  not  think  it  is  a 
case  to  make  the  creditors  pay  costs. 

The  summonses  are,  therefore,  dismissed  without  costs. ^ 

1  Ei  parte  Edmonds,  4  D.,  F.  &  J.  488,  498  (semble) ;  Re  Morgan,  18  Cli.  D.  93,  99 
(sembk) ;  lie  Evans,  34  Ch.  Div.  597  ;  Re  Gordon,  40  Ch.  Div.  536 ;  Mason  v.  Pomeroy, 
151  Mass.  164  (semble) ;  Cock  v.  Carson,  45  Tex.  429  (semble)  Accord.  See  also  CoUin- 
son  V.  Lister,  7  D.,  M.  &  G.  634.  —Ed. 


A  trustee  may  stipulate  by  apt  words  that  he  shall  not  be  liable  personally,  but 
only  out  of  the  trust  nioueys.  In  such  a  case  the  promisee  cannot  charge  the  trustee 
de  bonis  propriis.  But  he  may  reach  the  trust  funds  if  the  circumstances  were  such  as 
to  justify  the  trustee  in  pledging  them  for  the  benefit  of  the  trust.  Muir  v.  Glasgow 
Bank,  4'App.  Cas.  337,  361,  365,  368,  369-70,  377,  386,  388  ;  Campbell  v.  Gordon  (Ct. 
of  Sess.,  1840),  2  D.  639 ;  Johnson  v.  Leman,  30  111.  App.,  370;  Glenn  v.  Allison,  58 
Md.  527;  Noyes  v.  Blakeman,  6  N.  Y.  567;  New  v.  Nicholl,  73  N.  Y.  127  ;  Perry  v. 
Board,  102  N.  Y.  99;  Van  Slyke  v.  Buch,  123  N.  Y.  47;  Stanton  v.  King,  8  Hun,  4; 
•Fowler  v.  Mat.  Co.,  28  Hun,  195;  Randall  v.  Duseubury,  39  N.  Y.  Sup'r  Ct.  174. 
—  Ed. 


SECT.  VII.  J  LOED   GREY  V.    COL  VILE,  •  433 


SECTION   VII.  (continued), 
(b)  Creditors  of  Cestui  qde  Trust. 

LORD   GREY   and   Others   v.    COLVILE   and   Others. 
In  Chancery,  before  Lord  Finch,  C,  1678. 

[Reported  in  2  Reports  in  Chancery,  143.] 

In  Chancery,  before  Sir  Francis  North,  K.,  June  15,  1683. 

[Reported  in  1  Vernon,  172.] 

The  plaintiff  the  Lady  Grey's  bill  is  to  be  relieved  for  a  debt  of  £1,500 
and  interest  on  bond,  wherein  John  Colvile  did  bind  himself  and  his 
heirs  to  repay  the  same  unto  the  plaintiff,  her  executors  and  assigns, 
that  the  same  might  be  paid  out  of  the  lands  which  were  purchased  by 
the  said  John  Colvile  with  his  own  proper  money,  in  the  names  of 
himself  and  the  defendant's  wife,  to  hold  to  them  two  for  their  lives, 
and  then  to  the  heirs  of  Colvile,  and  the  rest  were  purchased  in  the 
names  of  the  said  defendants  Morriss  and  Saunders  in  trust  for  the  said 
John  Colvile  and  his  heirs;  that  soon  after  and  before  the  £1,500  was 
paid  the  said  John  Colvile  died,  and  tiie  riglit  and  equity  of  the  prem- 
ises during  the  life  of  the  said  defendant's  wife  is  in  Josia  Colvile,  and 
the  reversion  in  fee  after  the  death  of  the  said  wife  will  descend  to  the 
said  defendant,  Josia  Colvile,  as  sou  and  heir  of  the  said  John  Colvile, 
and  the  profits  are  received  by  liiin  or  for  his  use ;  that  the  said  John 
Colvile  dying  intestate,  administration  is  granted  to  Dorothy,  his  relict, 
who  pleads  she  hath  no  pei'sonal  estate,  whereupon  the  Lady  ('re}' 
commenced  a  suit  at  law,  by  filing  an  original  for  her  said  debt  against 
the  defendant  Josia,  as  son  and  heir  of  the  said  John  Colvile,  and  hath 
got  judgment  thereon  to  have  satisfaction  for  tiie  said  debt,  out  of  tlie 
reversion  of  the  lands  of  Josia,  which  descended  in  fee  to  the  said  de- 
fendant Josia  Colvil(\  and  ought  to  have  satisfaction  accordingly,  but 
the  said  defendant  Josia  pretendeth  he  hath  nothing  by  descent  in 
present  but  the  reversion  of  the  lands  purchased  in  the  names  of  John 
Colvile  and  iiis  wife,  after  the  death  of  his  wife,  whereas,  he  and  thi; 
other  two  defendants  were  only  trustees  for  John  Colvile  and  his  hcurs, 
an«l  their  trust  being  now  come  to  the  defendant  Josia,  tliey  are  liable 
us  assets  in  equity  for  satisfaction  of  the  i)hiintifF's  debts,  and  the 
plaintiff  ought  to  be  let  into  the  immediate  jwHsession  ;  and  the  said 
Josia  also  insists  that  tlie  ])reMiiseK  are  ineiiMil»ere(l  l)y  a  former  judg- 
ment of  one  lease  for  £«()0,  and  the  j)laintilTs  creditors  and  otiiers  the 
creditors  in  their  suit,  seeking  relief  against  the  same  defendants,  upon 
the  same  trust  and  equity,  and  to  have  their  debts  paid  out  of  the  said 
lands,   they  insisting  they  are  creditors   by   judgment,  grounded   on 

28 


434  LORD   GREY   V.   COLVILE.  [CHAP.  III. 

original  of  the  same  day  and  date  with  the  said  Lady  Grey,  and  ought 
to  bo  satisfied  in  equal  degree  and  time. 

The  plaintiff  Creed  and  the  other  creditors  insist,  that  they  for  so 
nuieli  as  the  estate  in  law  of  wife  is  in  the  heir,  that  their  judgments 
ought  to  attach  the  lands  according  to  priority  of  originals,  and  though 
the  said  Leke  hath  obtained  a  decree  prior  to  the  creditors  in  these 
suits,  yet  the  same  is  to  be  subject  to  the  direction  of  this  court,  and 
ought  not  to  take  place,  but  according  to  the  date  of  their  originals. 

This  court  (it  being  admitted  by  all  that  the  original  on  which  the 
said  Leke's  judgment  is  grounded,  is  prior  to  all  the  other  creditors' 
originals,  and  that  the  plaintiff,  the  Lady  Grey,  and  Creed's  originals 
are  next  in  priority,  and  bear  the  same  date  one  with  another,  and 
ought  next  to  be  satisfied  with  other  judgments,  who  originally  bear  the 
same  date)  declared  that  the  estate  purchased  in  the  names  of  the 
defendant's  wife  as  aforesaid  was  a  trust  for  life,  attending  the  reversion, 
and  so  liable  to  make  the  several  plaintiffs  satisfaction  for  their  debts, 
and  should  be  enjo3'ed  by  the  plaintiffs  against  the  said  wife  and  Josiah 
Colvile  the  heir ;  and  the  court  decreed  that  if  the  estate  of  wife  as 
aforesaid  was  not  sufficient,  then  the  said  reversionary  lands  purchased 
in  the  names  of  the  said  Morris  and  Sanders,  after  the  death  of  Sir 
John  Tufton,  who  hath  an  estate  for  life  in  the  said  lands,  should  go 
towards  satisfaction  of  the  said  debts. 

June  15,  1683.  The  single  point  of  this  case  was,  whether  the  trust 
of  an  estate  in  fee  descended  upon  the  heir  is  liable  in  equity  to  the 
satisfaction  of  a  debt  by  bond,  wherein  the  heir  is  expressly  bound. 

The  late  LorI  Chancellor  had  decreed  it  assets ;  but  upon  a  rehear- 
ing before  the  Lord  Keeper  he  seemed  doubtful. 

For  the  heir  against  the  decree  it  was  said  that  this  point  had  for- 
merly been  settled  upon  great  advice  in  the  case  of  Box  and  Bennet,^ 
which  was  beard  by  the  Lord  Chancellor,  with  the  assistance  of  the 
Lord  Chief  Justice  Hales  and  Mr.  Justice  Wadham  Windham. 

But  for  the  decree  it  was  argued  that  the  precedent  of  Box  and 
Bennet  was  looked  upon  as  a  hard  case,  and  had  never  carried  any 
great  authority  with  it,  it  being  a  precedent  of  the  judges'  making,  wlio 
look  upon  the  court  of  chancery  as  precarious  in  its  jurisdiction,  and 
therefore,  as  much  as  may  be,  are  for  restraining  it  to  the  rules  of  law ; 
but  a  trust,  being  a  creature  of  this  court,  ought  to  be  governed  solely 
by  the  rules  of  equity,  and  equity  ought  to  be  conformable  throughout ; 
and  therefore  why  should  not  the  trust  of  an  inheritance  be  assets  as 
well  as  the  trust  of  a  term?  An  equity  of  redemption  is  every  day 
made  assets  in  equity  ;  ^  and  what  reason  can  be  given  why  in  equity  a 

1  1  Ch.  Cm.  1. 

2  Plncknet  v.  Kirk  (1686),  1  Vern.  411  ;  Cole  v.  Warden  (1686),  1  Vern.  410;  Sol- 
ley  I'.  Gower  (1688),  2  Vern.  01 ;  Anon.  (1690),Freem.  C.  C.  115,  Accord.  In  Solley  v. 
Gower,  sujtra,  the  court  said : — 

"The  equity  of  redemption  of  an  inheritance  is  not  assets  at  law,  because  the  estate 


SECT.  VII.]  LORD    GREY   V.    COLVILE.  435 

trust  of  an  inlieritauce  should  not  be  assets,  where  the  inheritance  itself, 
had  it  not  been  in  trust,  would  have  been  assets  at  law?  ^ 

Lord  Keeper.  I  know  the  case  of  Box  and  Beunet  has  had  hard 
words  given  it,  and  been  much  railed  at ;  but  the  decree  in  that  cause  was 
made  upon  great  advice,  and  he  did  not  know  how  he  could  be  better 
advised  now,  and  said,  there  was  a  difference  between  the  case  of  an 
heir  and  the  case  of  an  executor ;  and  therefore  the  trust  of  a  term  and 
the  trust  of  an  inheritance  are  not  the  same  thing,  as  to  this  point ;  for 
whatever  money  comes  to  tlie  hands  of  the  executor,  either  by  sale  of 
the  term,  or  if  raone}'  be  decreed  to  him  in  this  court,  will  be  assets : 
but  if  an  heir,  before  an  action  brought,  sells  and  aliens  the  assets,  the 
money  is  not  at  law  liable  in  his  hands,  unless  the  sale  were  with  fraud 
or  collusion ;  as  if  an  heir  sell  and  buy  again,  there  the  new  purchased 
lands  will  be  assets.  And  as  to  an  equity  of  redemption,  he  said  that 
if  a  man  had  a  mortgage  and  a  bond,  before  the  mortgage  should  be 
redeemed  by  the  heir  the  bond  ought  to  be  satisfied ;  but  he  did  not 
know  that  an  equity  of  redemption  should  be  assets  in  equity  to  all 
creditors,  and  mentioned  Mr.  Baron  Weston's  case  against  Mrs.  Danby. 

As  to  the  case  in  question,  his  Lordship  said  he  would  not  throw 
such  a  cause  out  of  court  without  good  consideration  first  had,  and 
that  he  should  be  much  governed  by  the  precedent  of  Box  and  Bennet, 
unless  they  could  show  that  the  latter  precedents  had  been  otherwise  ; 
and  directed  them  to  attend  him  with  precedents  towards  the  latter  end 
of  the  term.^ 

is  forfeited  ;  but  the  heir  having  a  right  in  equity,  that  ought  in  equity  to  be  liable  to 
satisfy  a  bond  debt." 

A  mortgagee,  who  was  also  the  holder  of  an  unsecured  specialty  claim  against  the 
mortgagor  might,  in  or<ler  to  avoid  circuity  of  action,  tack  tlie  latter  to  his  mortgage 
in  a  suit  i)y  tlie  heir  of  the  mortgagor  to  reileem  tlie  mortgage.  This  was  allowed,  ob- 
vionsly,  only  because  the  ecjuity  of  redemption  was  assets  in  the  hands  of  the  heir. 
VVindiiam  r.  Jennings  (K,H.}),  2  Ch.  IJep.  247  ;  Shnttlcwortb  v.  Laycock  (16?4),  1  Vcrn. 
244;  Anon.  (1 084),  2  Ch.  Ca.  104;  Coleman  f.  Winch  (1721),  11'.  Wm.  77.'i;  I'owis. 
r.  Corbet  (1747),  3  Atk.  556;  Troughton  v.  Troughton  (1747),  1  Ves.  Sr.  87. 

Similarly,  and  for  tbe  .^^ame  rca.son,  a  mortgagee  of  personalty  is  allowed  to  tack 
other  claims  against  the  mortgagor  in  a  suit  for  redemption  brought  by  tbe  latter'.^  execu- 
tor. Anon.  (1690),  2  Vem.  177;  Ecdes  v.  Thewiil  (ir,!K»),  Prec.,Ch.  18;  Demamiray  r. 
Metcalf,  Tree.  Cli.  410, 2  Vem.  691 ,  S.  C. ;  Coleman  v.  Winch,  1  P.  Wm.  775,  777  ;  Van- 
dcrzee  c  Wiili.s,  .1  Bro.  C.  C.  21  (.scmWf).  —  Ed. 

'  The  arguments  and  o})inions  are  slightly  abridged.  —  Ki>. 

2  Reg.  Lib.  1082,  A,  fol.  818.  This  cause  came  on  again  tbe  14th  of  December, 
when  an  order  was  made  for  the  parties  to  attend  the  two  Lords  Chief  .Instices  and  Lord 
Chief  Baron,  who  were  thereby  (b'sired  to  certify  their  opinion  on  the  (lucstion.  Keg. 
]>ib.  108.3,  A,  fol.  100.  Afterwjirds  in  Michaelmas  Term,  1684,  ujton  motion  of  the  de- 
fendants, it  was  ordered  that  unless  jtlaintiffs,  the  creditors,  procured  the  certificate  of 
I/ord  Chief  .Tu'<ti<-es'  and  Lord  Chief  Huron's  ojiinioii,  bv  the  first  (biv  of  the  next  term, 
tlie  bill  should  be  dismissed  without  fnrlbir  motion.  Itei^.  Lib.  l(;><t,  A.  bd  L'lo.  No 
further  proceedings  apjtear. 

Sec,  in  snjiport  of  the  Lord  Keejier's  inclination,  Bennet  e.  Box  (Mir,.!),  I  Ch.  C.i. 
12;  King  r.  Sands  (1000),  Freem.  C.  C.  120;  I'rat  r.  Colt  (1070),  I  Ch.  Ca.  I2K; 
Trevor  v.  I'erryor  (1670),  1  Ch.  Cn.  148  (ssmWr);  Atty.  Gen.  v.  S.ands  (1670),  NeU 
130,  134  isfmUlf).     But  sec  contra,  Goffc  v.  Whalley  (1684),  1  Vern.  282. 


436  LORD   GREY   V.    COLVILE.  [CHAP.  III. 

But  it  has  long  been  m^CLT  that  Lord  Nottingham  was  right  upon  both  points, 
namely,  that  ei|uitablo  interests  are  subject  to  equitable  execution,  and  that  a  creditor 
inav  liy  his  diligence  obtain  priority  in  equity  as  freely  as  at  law.  The  correct  prin- 
ciple was  stated  by  Mr.  Justice  Matthews  in  Freednian's  Co.  v.  Earle,  110  U.  S.  710, 
1X2  et  set/. 

"  At  common  law  executions  ujxni  judgments  could  not  be  levied  upon  estates  merely 
eiiuitable,  because  courts  of  law  did  not  recognize  any  such  titles  and  could  not  deal 
with  tiicni.  Tliey  could  not  be  levied  upon  the  estate  of  tlic  trustee  when  the  judg- 
ment was  against  the  cestui  que  trust  for  the  same  reason ;  and  when  the  judgment  was 
against  tlie  trustee,  if  his  legal  estate  should  be  levied  on,  the  execution  creditor  could 
acquire  no  beneficial  interest,  and  if  the  levy  tended  injuriously  to  affect  tlie  interest 
of  the  cestui  que  trust,  tiie  latter  would  be  entitled  to  relief,  l)y  injunction  or  otherwise, 
iu  equity.     Lewin  on  Trusts,  181,  186;  2  Spence  Eq.  Jur.  39. 

"  But  as  courts  of  equity  regarded  the  custui  que  trust  as  the  true  and  beneficial  owner 
of  the  estate,  to  whose  uses,  according  to  the  terms  of  the  trust,  the  legal  title  was 
made  subservient,  so  in  its  eyes,  the  estate  of  the  cestui  que  trust  came  to  be  invested 
with  the  same  incidents  and  qualities  which  in  a  court  of  law  belonged  to  a  legal  estate, 
so  far  as  consistent  with  the  preservation  and  adniiinstration  of  the  trust.  1'iiis  was  by 
virtue  of  a  principle  of  analogy,  adopted  because  courts  of  equity  were  unwilling  to  in 
terfere  with  the  strict  course  of  the  law,  excejjt  so  far  as  was  necessary  to  execute  the 
just  intentions  of  parties,  and  to  prevent  the  forms  of  the  law  from  being  made  the 
means  and  instruments  of  wrong,  injustice,  and  oppression. 

"  Thus  equitable  estates  were  held  to  be  assignable  and  could  be  conveyed  or  devised ; 
were  subject  to  the  rules  of  descent  .applicable  to  leg.al  estates  ;  to  the  tenancy  by  cur- 
tesy, though  not  to  dower,  by  an  anomalous  exception  afterwards  corrected  by  statute, 
3  and  4  Will.  IV.,  c.  105;  and  were  ordinarily  governed  by  the  rules  of  law  which 
measure  the  duration  of  the  enjoyment  or  regulate  the  devolution  or  transmission  of 
estates ;  so  that,  in  general,  whatever  would  be  the  rule  of  law,  if  it  were  a  legal  estate, 
was  applied  by  the  court  of  chancery  by  analogy  to  a  trust  estate.  1  Spence  Jiq. 
Jur.  502.  .  .  .  The  ground  of  the  jurisdiction  therefore  is,  not  that  of  a  lien  or  charge 
arising  by  virtue  of  the  judgment  itself,  but  of  an  e(juity  to  enforce  satisfaction  of  the 
judgment  by  means  of  an  equitable  execution.  And  this  it  effects  by  a  sale  of  the 
debtor's  interest  subject  to  prior  encumbrances,  or  according  to  circumstances,  of  the 
%vhole  estate,  for  distribution  of  the  proceeds  of  sale  among  all  the  encumbrancers 
according  to  the  order  in  which  they  may  be  entitled  to  participate.  Sharp  v.  Earl  oj 
Scarboroufjh,  4  Ves.  538. 

"  It  is  to  be  noted,  therefore,  that  the  proceeding  is  one  instituted  by  the  judgment 
creditor  for  hi.s  own  interest  alone,  unless  he  elects  to  file  the  bill  also  for  others  in  a 
like  situation,  with  whom  he  chooses  to  make  common  cause ;  and  as  no  specific  lien 
arises  by  virtue  of  the  judgment  and  execution  alone,  the  right  to  obtain  satisfaction 
out  of  the  specific  property  sought  to  be  subjected  to  sale  for  that  purpose,  dates  from 
the  filing  of  the  bill.  As  his  lien  begins  with  the  filing  of  the  bill,  it  is  subject  to  all 
existing  encumbrances,  but  is  superior  to  all  of  sub.sequent  date. 

"This  is  in  strict  accordance  with  the  analogy  of  the  law,  as  it  was  recognized 
that  the  judgment  creditor  who  first  extends  the  lanil  by  <ile(fit  is  thereby  entitled  to  lie 
first  satisfied  out  of  it.  It  is  the  execution  fir.st  begun  to  be  executed,  unless  otherwise 
regulated  by  statute,  which  is  entitled  to  priority.  Rockhill  v.  Ilanna,  15  How.  189, 
195;  Pai/ne  v.  Drew,  4  East,  523.  The  filing  of  the  bill,  in  c.a.'ses  of  equitable  execu- 
tion, is  the  beginning  of  executing  it.  The  doctrine  of  e(iuitable  assets,  to  which  we 
are  referred  by  the  appellant  as  the  ground  of  his  claim,  has  no  application  to  the 
case.  Ordinarily  and  strictly,  the  term,  equitable  assets,  applies  only  to  property  and 
funds  l>elonging  to  the  estate  of  a  decedent,  which  by  law  are  not  subject  to  the  pay- 
ment of  debts,  in  the  course  of  administration  by  the  personal  representatives,  but 
which  the  testator  has  voluntarily  charged  with  the  payment  of  debts  generally, 
or  which,  being  non-existent  at  law,  have  been  created  in  eijuity,  under  circumstances 
which  fasten  upon  them  such  a  trust.     Adams  on  Equity,  254."  —  Ed. 


SECT.  VII.]  STATUTE    29   CHARLES   U.  437 


Statute  29  Charles  II.,  Chapter  3,  Sections  10  and  II,  1676. 

[8  Statutes  at  Large,  407.] 

§  10.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from  and  after  the 
said  four  and  twentieth  day  of  June  it  shall  and  may  be  lawful  for  every  sheriff  or 
other  officer  to  whom  any  writ  or  precept  is  or  shall  be  directed,  at  the  suit  of  any  per- 
son or  persons,  of,  for,  and  upon  any  judgment,  statute,  or  recognizance  hereafter  to  be 
made  or  had,  to  do,  make,  and  deliver  execution  unto  the  party  in  that  beiialf  suing,  of 
all  such  land.<«,  tenements,  rectories,  tithes,  rents,  and  hereditaments  as  any  other  per- 
son or  persons  be  in  any  manner  of  wise  seised  or  possessed,  or  hereafter  shall  be  seised 
or  possessed,  in  trust  for  him  against  whom  execution  is  so  sued,  like  as  the  sheriff  or 
other  officer  might  or  ouglit  to  have  done,  if  the  said  party  against  whom  execution 
hereafter  shall  be  so  sued,  had  been  seised  of  such  lands,  tenements,  rectories,  tithes, 
rents,  or  other  hereditaments  of  such  estate  as  they  be  seised  of  in  trust  for  him  at  the 
time  of  the  said  execution  sued ;  (2)  which  lauds,  tenements,  rectories,  tithes,  rents, 
and  other  hereditaments,  by  force  and  virtue  of  such  execution,  shall  accordingly  be 
held  and  enjoyed,  freed  and  discharged  from  all  incumbrances  of  such  person  or  per- 
sons as  shall  be  so  seised  or  possessed  in  trust  for  the  person  against  whom  such  exe- 
cution shall  be  sued ;  (3)  and  if  any  cestui  que  trust  hereafter  shall  die,  leaving  a  trust 
in  fee-simple  to  descend  to  his  heir,  there  and  in  every  such  case  such  trust  shall  be 
deemed  and  taken,  and  is  hereby  declared  to  be  assets  by  descent,  and  the  heir  shall 
be  liable  to  and  chargeable  with  tlie  obligation  of  his  ancestors  for  and  by  reason  of 
such  assets,  as  fully  and  amply  as  he  might  or  ought  to  have  been,  if  tlie  estate  in  law 
had  descended  to  him  in  possession  in  like  manner  as  the  trust  descended ,  any  law, 
custom,  or  usage  to  the  contrary  in  any  wise  notwithstanding. 

J  This  section  of  tlie  Statute  of  Frauds  applies  only  to  bare  trusts.  Firth  v.  Nor- 
folk, 4  Mad.  503 ;  D(je  v.  Greenhill,  4  B.  &  Al.  684 ;  Harris  v.  Booker,  4  Biug.  96 ; 
Harris  u.  Pugh,  4  Biiig.  33.5  ;  Pettit  y.  Johnson,  15  Ark.  55;  Pope  w.  Boyd,  22  Ark. 
535,  538;  Pitts  r.  Bullard,  3  Ga.  5  ;  Modisett  v.  Jolinsou,  i  Blackf.  431 ;  State  Bank  ir. 
Macy,  4  Ind.  362;  Hanna  v.  Aebker,  84  Ind.  411,415;  Broadwell  t;.  Yantis,  10  Mo. 
398  ;  Mcllvaine  f.  Smith,  42  Mo.  45  ;  Bogert  v.  Perry,  17  Johns.  351 ;  1  Johns.  Ch.  52, 
8.  c. ;  Jackson  r.  Bateman,  2  Wend.  573,  575  {semhle);  Lynch  r.  Utica  Co.,  18  Wend. 
236 ;  Ontario  Bank  c.  Boot,  3  Paige,  478 ;  Kellogg  v.  Wood,  4  Paige,  578,  619  ;  Bogert 
V.  Power,  10  Paige,  562;  Brown  i.  Graves,  4  Hawks,  342;  Mordecai  v.  Parker,  3  l)ev. 
425;  Battle  r.  Petway,  5  Ired.  576;  Thompson  r.  Ford,  7  Trod.  418;  Tally  v.  Peed,  72 
N.  C.  .336;  Davis  v.  Inscoe,  84  N.  C.  403;  White  r.  Kavanagh,  8  Rich.  377;  Bristow  v. 
McCall,  16  S.  C.  548;  Shute  v.  Harden,  I  Yerg.  1  ;  Smitheai  v.  Gray,  1  Humph.  491  ; 
Coutts  ij.  Walker,  2  Leigh,  268. 

See  also  Siiaw  /•.  Lind.sey,  60  Ala.  344;  Smith  v.  Cockrell,  66  Ala.  64;  McMuUeu 
V.  Lant,  4  Iloust.  648;  Blauchard  v.  Taylor,  7  B.  Mon.  645;  Anderson  v.  Briscoe,  12 
Bush,  .344. 

'J'he  e(|nitablo  interest  mast  ho  in  the  debtor  at  the  time  of  tho  execntion.  Hunt 
V.  Cole.-^,  Com.  226 ;  Harris  v.  Pugh,  4  Bing.  335. 

The  equitaUe  interest  of  a  crown  debtor  may  be  reached  by  an  extent.  Ciiirton'a 
Ca.ie,  Dyer,  160  a ;  ca.se.s  cited  in  (Jodb.  294.  298.  2'.I9  ;  King  v.  Smith.  Sugd.  V.  &  P. 
(lOrh  ed.)  Append.  No.  18;  King  v.  Do  la  Motte.  Forr  162;  King  v.  Lanihe,  McClcI. 
402.  Thi.s  privilege  is  derived  not  from  a  Htatnte,  but  fmm  tbo  practice  of  tho 
exchcfpier  at  conmion  law.     Att'y-Gcn.  »•.  Sands.  Hani.  495. 

In  some  jiirisdictions  the  statiitPS  bavo  gone  miicli  fiirtbor  th.iii  (lie  Statnto  nf 
Frauils  in  making  ccpiitabjc  interest.'^  nubject  to  n  common  l.iw  execution.  Kennedy 
V.  Nnnan,  52  Cal.  331  ;  Lc  I{oy  c  Dnnkerly,  54Cal.  452;  Davenport  v.  Laron.  17  Conn. 
27S;  Johnsfm  v.  Conn.  Bank,  21  Tonn.  148.  159;  Cro.nby  r.  Klkade  Lodge.  16  lowii, 
399;  Ki.«ier  )'.  Sawyer,  4  Ka.s.  503;  Miller  i-.  Allison,  8  (iill  &  J.  35;  McMcclien  u. 
Mnrman.  8  Gill  &  J.  57 ;  Carpenter  i:  Bower,  42  Miss.  28;  Block  v.  Morrison,  112  Ma 
343  ;  Drake  v.  Brown,  68  Pa.  223.  — En. 


438  CKEDITOKS   OF   SIR    CHARLES    COX.  [CIIAP.  III. 


THE   CREDITORS   OF   SIR  CHARLES   COX. 

In  Chancery,  before  Sir  Joseph  Jekyll,  M.  R.,  Michaelmas 

Term,  1734. 

[Reported  in  3  Pcere  Williams, -Sil.] 

Another  part  of  this  case  was  reserved  for  the  further  consideration 
of  the  court,  and  was  as  follows  :  — 

Sir  Charles  Cox,  possessed  of  a  term  for  years,  made  a  mortgage 
thereof,  and  died  possessed  of  the  equity  of  redemption  of  the  said 
mortgai^e,  and  leaving  greater  debts  due  from  him  at  his  death  than 
his  estate  would  extend  to  pay.  Whereupon  the  question  was,  whether 
this  mere  equit}'  of  redemption  was  only  equitable  assets,  and  distribut- 
able equally  2»'0  rata,  among  all  the  creditors,  without  regard  to  the 
degree  or  quality  of  their  debts ;  or  whether  it  should  be  applied  in  a 
course  of  administration ;  in  which  last  case  the  bond  creditors  would 
swallow  up  all  the  assets,  without  leaving  anything  for  the  simple 
contract  creditors. 

And  his  Honor,  after  time  taken  to  consider  of  it,  delivered  his 
opinion  with  solemnity ;  ^  that  this  equity  of  redemption  was  equitable 
assets  only,  the  mortgage  being  forfeited  at  law,  and  the  whole  estate 
thereby  vested  in  the  mortgagee.  "Wherefore  this  right  of  redemption 
being  barely  an  equitable  interest,  it  was  reasonable  to  construe  its 
.equitable  assets,  and  consequently  distributable  amongst  all  the 
creditors  pro  rata,  without  having  respect  to  the  degree  or  quality  of 
their  debts  ;  all  debts  being  in  a  conscientious  regard  equal  and  equality 
the  hightest  equity;  accordingly  it  was  so  decreed.     But, 

Secondly,  The  court  declared,  that  where  a  bond  is  due  to  A.  but 
taken  in  the  name  of  B.  in  trust  for  A.  and  A.  dies ;  this  must  ])e 
paid  in  a  course  of  administration ;  ^  for  in  such  case  there  can  hardly 
be  any  dispute  touching  the  quantum  of  the  debt,  seeing  the  principal, 
interest  and  also  the  costs,  must  be  paid  to  the  obligee  in  the  bond ; 
whereas  in  the  other  case,  the  costs  must  be  paid  by  the  party  coming 
to  redeem.  For  the  same  reason,  if  a  term  for  years  be  taken  in  the 
name  of  B.  in  trust  for  A.,  this,  on  the  death  of  A.  the  cestui  que  trust, 
will  be  legal  assets ;  for  here  the  right  to  the  thing  is  plain,  and  if  the 
trustee  contests  it,  he  must,  prima  facie,  do  it  on  the  peril  of  paying 
costs. ^ 

'  Tho  opinion  of  the  court  is  materially  abridged.  —  Ed. 

2  Will.fon  V.  Fielding  (1718),  2  Vern.  763  Accord.  — Y.n. 

2  The  distinction  taken  in  the  principal  case  between  a  trust  and  an  equity  of 
redemption  was  followed  in  Ilartwell  v.  Chitters,  Anib.  308,  and  was  approved  extra- 
juilicially  by  Lord  Hanlwicke  in  I'lunket  v.  Tenson,  2  Atk.  290,  294,  and  l)y  Bayley,  .J., 
in  Clay  v.  Willis,  1  B.  &  C.  364,  372.  But  it  is  now  f^enerally  agreed  that  Sir  .lo.seph 
Jekyll  and  Lord  Ilardwicke  were  wrong,  and  that  all  equitable  interests  which  come 
to  an  heir  or  executor  as  .such  arc  to  be  distributed  like  legal  interests,  upon  the  prin- 
ciple that  equity  follows  the  law.     Sharpe  v.  Scarborough,  4  Ves.  538 ;  Cooke  v.  Greg- 


SECT.  YII.]  KIRKBY    V.   DILLON.  439 


KIRKBY    V.    DILLON. 
Is  Chaxckry,  before  Silt  John  Leach,  V.  C,  February,  1824. 

[Reported  in  Cooper,  504.] 

Sir  John  Leach.  Formerly  it  was  very  common  for  debtors  to  con- 
vert their  legal  estates  into  equitable  estates  for  th'e  purpose  of  defeat- 
ing such  of  their  creditors  as  might  obtain  judgments.  That  practice 
gave  rise  to  numerous  bills  in  this  court  for  what  is  called  an  equitable 
execution.  In  many  cases  of  that  kind  the  legislature  has  now  given 
to  creditors  full  relief  in  the  courts  of  common  law  by  the  Statute  of 
Frauds,  which  directs  the  sheriff  to  deliver  execution  of  all  lands,  which 
any  person  is  seised  or  possessed  of,  in  trust  for  him  against  wliom  the 
execution  is  sued.  Yet,  however  liberal  the  construction  which  the 
courts  of  common  law  may  be  disposed  to  put  upon  this  enactment,  it 
is  obvious  there  must  be  cases  in  which  a  debtor  has  a  beneficial  interest 
iu  laud,  and  yet  no  one  can  be  said  in  a  legal  sense  —  in  such  sense  as 
a  court  of  common  law  must  understand  the  statute  —  to  be  seised  or 
possessed  in  trust  for  him.  At  all  events,  there  must  be  cases  in  which 
no  process  of  a  common-law  court  can  get  at  that  estate,  of  which  some 
one  is  seised  or  possessed  in  trust  for  the  debtor.  In  such  cases  as 
these,  presenting  impediments,  which  the  common-law  courts  cannot 
remove,  bills  for  equitable  execution  must  continue  to  be  filed. ^ 

son,  3  Drew.  547,  .549-51  ;  Slice  v.  French,  .3  Drew.  716  ;  Mutlow  v.  Mutlow,  4  De  G.  & 
J.  o.'59;  Lewiii,  Trusts  (9th  cd.),  941  ;  4  (Jray,  Cas.  on  Prop.  042,  774,  n. 

Equitahle  a.s.sets  in  the  sense  of  a.ssets  (li.strihutal)le  equally  among  all  the  creditors 
of  a  deceased  iier.son  could  he  created  only  in  the  ca.se  of  realty,  and  then  too  only  hy  a 
devi.^e  in  trust  for,  or  charj^ed  witii  the  imyincnt  of  the  dehts  of  the  testator.  It  was, 
indeed,  the  ojiiiiion  of  many  judges  that  adevi.se  of  Innd  for  the  payment  of  dehts  would 
not  he  e<|nitahle  a.ssets  in  the  sense  just  mentioiu'd  if  the  devise  were  to  tiu^  heir  or 
executor  of  the  testator.     Swinerton  r.  ,  Y.  H.  2  II.  IV.  21,  22,  pi.  2,  per  Mark- 

ham,  .1.,   Hiikill,  J.,  (lisi^. ;    Anon.  Y.    B.  .3    Men.  VI.   pi.  4;    Alexander  r.  (Jresliam 

1  Leon.  221;  Anon.  1  Roll  A  I).  920,  pi.  6  ;  Hurwell  r.  Corrant,  Ilanl.  405 ;  Dettick 
»•.  Caravan,  1  Lev.  224;  (Jirling  v.  Lee,  1  Vern.  6.3 ;  Ilawkes  c.  Huckland,  2  Vern. 
106;  Cuttr-rhack /•.  Smith,  I'rec.  Ch.  127.  2  Vern.  295,  s.  r.  ;  Hickham  r.  Freeman, 
I'rec.  Ch.  i:t6;  Ma.sham  u.  Ilanling,  l?nnh.  .3.39 ;  Blatch  r.  Wilder,  1  Alk.  420;  Fre- 
moult  I.'.  Dediro,  1   P.  Wms.  429;    I'lunket  i,-.   I'ensnn,  2  Atk.  290;  A  11am  i-.    lleher, 

2  Stra.  1  270. 

Hut  these  ca-sos  were  finally  overruled,  ami  the  doctrine  estahli.^hed  that  land 
devised  to  any  one  for  the  payment  of  dehts  must  he  applied  ratahly  among  n\]  cred- 
itors. Silk  V.  I'rime,  I  Hro.V'.  C.  1.3H,  n.  (4);  Newton  r.  Heniu't.  1  Urn.  C.  C.  1.35; 
Margrave  v.  Tindal,  1  Bro.  C.  P.  1.36  n.  ;  Hailey  r.  Kkins,  7  Ves.  .319;  Shipherd  r. 
Lutwidge.  8  Ves.  26  ;  Helm  v.  Darhy,  .3  Dana.  IR5;  Clondas  r.  Adams,  4  Dana,  60.3  ; 
('lav  r.  Hart.  7  Dana,  1  ;  Speed  »•.  Nelson,  R  R.  Mon.  499  (overruling  Mooro  r.  \Y.illi  r, 

1  .1.  J.  .Mar'^h    491)  ;   I'.ensrm  r.  Le  Hoy,  4  .lohns.  Ch    651.—  Fo. 

'  Barthrop  v.  West.  2  Ch.  "Rep  62;  Anecll  r.  Draper.  1  Vern  .399;  Anon.  1.  V. 
Wms.  445  (citfd):  Smithicr  c  Lowis.  1  Vorn.  39H  ;  Kintr  ".  M.Tri«:ill.  3  Alk.  192; 
Rhirlev  r.  Watts,  .3   Atk.  200;  Bunion  r.   K'-nufdy.  3   Atk    7.3'l  ;   Dillon  >:  I'laski-tt, 

2  Bligh,  N   H.  239;  Smith  v.  Hurst,  I  Ci-11.  705;  Neato  v.  Marlhorough,  .3  Mv.  &  Cr. 


440  KIRKBY   V.    DILLON.  [CHAP.  IIL 

407  ;  Hfiinett  v.  Powell,  3  Drew.  326 ;  Gore  v.  Bowser,  3  Sm.  &  G.  1  ;  Partridge  v.  Fos- 
ter, 34  Be:iv.  1 ;  Ilorsley  v.  Cox,  W.  N.  (1869),  22 ;  Tillett  v.  Pearson,  43  L.  J.  Ch.  93 ; 
'Anglo-Italian  Bank  v.  Davies,  9  Ch.  D.  275  ;  A'e  Sheppard,  43  Ch.  Div.  131 ;  Simpson 
V.  linlor,  7  Ir.  Eq.  R.  182  Accord. 

In  tliis  country  the  et|uital)lo  interests  of  a  debtor  are  in  most  States  applicable  to 
the  satisfaction  of  his  debts,  but  the  mode  by  which  a  creditor  should  proceed  is  largely 
regulated  by  statutes.  As  a  rule,  the  creditor  must  exhaust  his  remedy  .at  law  before 
resorting  to  a  bill  for  equitable  execution.  But  iu  some  States  a  creditor  may  proceed 
in  ecjuity  or  at  law  at  his  option.  Cromptou  v.  Anthony,  12  All.  33 ;  Barry  v.  Abbot, 
100  Miiss.  396;  Wilson  ».  Martin-Wilson  Co.,  151  Mass.  515,  517. 

In  some  jurisdictions,  e.  g.  California,  lllinoih,  Iiuiiana,  Kansas,  Micliigan,  Minne- 
sota, New  Jersey,  New  York,  North  and  South  Dakota,  Oklahoma,  Tennessee,  the  legis- 
lation has  been  iu  the  direction  of  exempting  equitable  interests  of  a  debtor  from  the 
claims  of  his  creditors,  especially  when  the  equitable  interest  came  to  the  debtor  from  a 
third  person.  A  full  citation  of  these  statutes  and  the  decisions  thereunder  may  be 
found  in  Gray,  Restraints  on  Alienation  {2d  ed.),  §§  280-296. —  Ed. 


SECT.  VII.]  SCOTT   V.   SCHOLEY.  441 


SECTION   VII.  {continued), 
(b)  Creditors  of  the  Cestci  que  Tkdst. 

SCOTT  V.  SCHOLEY  and  Another. 

In  the  King's  Bench,  June  6,   1807. 

[Reported  in  8  East,  467.] 

Lord  Ellenborough,  C.  J.,  said  that  the  case  involved  a  question 
of  great  magnitude  and  extent,  upon  which  it  was  proper  for  the 
court  to  deliberate  before  they  pronounced  their  judgment.  The 
case,  therefore,  stood  over  till  this  day,  when  his  Lordship  delivered 
the  opinion  of  the  court. 

This  was  an  action  on  the  case  against  the  defendants,  as  sheriff  of 
Middlesex,  for  a  false  return  of  tiidla  bona  to  a  writ  of  Jieri  facias 
against  the  goods  and  chattels  of  George  Coleman,  Esq.,  which  was 
tried  before  me,  and  in  which  a  verdict  was  given  for  the  plaintitf. 
Upon  a  motion  for  a  new  trial,  it  was  ordered  that  the  facts  should  be 
stated  in  the  form  of  a  case  for  the  opinion  of  the  court.  [After  stat- 
ing the  material  facts  of  the  case  his  Lordship  proceeded.] 

The  question  of  law  arising  out  of  these  facts  is,  whether  the  resi- 
duary beneficial  interest  of  Mr.  Coleman,  under  the  trusts  upon  which 
a  lease  for  years  in  the  new  theatre  in  the  Hay  market,  and  the  appar- 
atus, &c.,  belonging  to  the  same  had  been  assigned,  and  which 
remains  to  him,  after  satisfying  the  several  debts  and  inoum])rances 
thereupon,  and  indenmifying  the  trustees  acting  under  the  trust  deed, 
were  liable  to  be  taken  in  execution  by  a  writ  of  Jieri  facias  for  the 
debt  of  the  plaintiflf,  a  judgment  creditor.  Which  question,  in  other 
and  fewer  words,  amounts  to  this;  viz.,  whetlier  an  equitable  interest 
in  a  term  of  years  can  be  sold  under  a  Jieri  Jaeias.  The  slieriff's 
authority  is  derived  under  a  writ,  by  which  he  is  commanded  to  cause 
to  be  made  of  the  goods  and  chattels  of  the  defendant  the  sum  recov- 
ered;  and  which  sum  is,  of  course,  to  be  made  by  a  sale  of  the  things 
taken  under  the  execution.  If  flic  sheriff  should  not  be  able,  before 
hi:^  writ  is  returnable,  efF(!Ctu;illy  to  exeeutc  it  in  this  particular,  he  is 
allowed  to  excuse  himself  by  returning  that  the  good.s  remain  in  his 
hands,  unsold,  for  want  of  liiiyfrs;  upon  which  another  writ  issjies, 
commanding  him  to  expose  to  sale  the  goods  so  remaining  in  his 
liaiids  unsold.  The  language  of  these  writs  and  return  evidently 
imports  that  the  goodH  and  chattels,  which  are  the  object  of  them,  are, 
properly,  of  a  tangible  natinc,  capable  of  maiuial  seizure,  and  of 
being  detained  in  the  sheriff's  hands  and  ciistody,  and  such,  also,  as 
are  conveniently  capable  of  sale  and  transfer  by  the  sheriff,  to  whom 


442  SCOTT  ?;.  sciioley.  [ciiAr.  iii. 

the  ^Yl•it  is  diiectcHl,  for  the  satisfaction  of  a  creditor.  The  Iciial  in- 
terest  in  a  term  of  years,  both  in  respect  of  the  possession  of  which 
the  leasehold  property  itself  is  capable,  and  also  in  respect  of  the  in- 
strument by  which  the  term  is  created  and  secured  (both  of  which  are 
capable  of  delivery  to  a  vendee),  has  been  aiwaj's  held  to  answer  the 
description  of  the  writ,  and  to  be  salable  thereunder.  Dyer,  3G3  a. 
Hut  no  single  instance  is  to  be  found  in  the  history  and  practice  of 
the  courts  of  common  law  in  which  an  equitable  interest  in  a  term  of 
years  has  ever  been  recognized  as  salable  (seizable,  of  course,  it 
cannot  be)  under  a  ^fieri  facias.  Besides,  what  locality  belongs  to  an 
equitable  interest,  a  resulting  trust,  for  instance,  in  a  term  for  years, 
so  as  to  render  it  more  fitly  the  subject  of  execution  and  sale  by  the 
sheriff  of  any  one  county  than  another?  The  degree  of  inconvenience 
which  would  attend  the  sale  of  such  interests  by  the  sheriff,  although 
it  would,  in  strictness,  afford  no  argument  against  an  ascertained  legal 
power  of  the  sheriff  on  such  a  subject,  is  a  sutlicient  reason  why  the 
court  should  anxiously  watch  the  extension  of  such  power  in  a  case 
in  an}'  respect  doubtful.  What  means,  in  any  degree  adequate,  has 
the  sheriff  of  taking  an  account  of  the  actual  amount  of  the  incum- 
brances thereupon,  or  of  ascertaining  the  extent  of  the  indemnities 
which  the  trustees  may  be  entitled  to  claim?  The  sale  of  such  an 
interest,  if  it  were  to  be  made  at  all  by  the  sheriff,  must,  necessarily, 
be  made  under  circumstances  of  still  greater  ignorance  and  uncer- 
tainty as  to  its  value  than  attend  sales  of  any  other  description  of 
property;  and  not  onl}^  without  any  legal  means  of  delivering  a 
present  possession  of  the  thing  sold,  but,  in  general,  without  having 
even  the  type  or  instrument  of  any  legal  interest  whatsoever,  present 
or  future,  in  the  subject  of  such  sale,  to  exhibit  to  the  sight  or  deliver 
to  the  hands  of  a  purchaser.  It  has,  indeed,  been  urged  in  argument, 
as  an  inconvenience  on  the  other  side,  if  such  equities  of  redemption 
in  chattel  interests  shall  be  held  not  to  be  salable  under  an  execution ; 
that,  by  means  of  a  mortgage  of  the  largest  leasehold  property  for  the 
smallest  sum  imaginable,  such  property  might  be  effectually  protected 
and  withdrawn  from  the  legal  claims  of  every  creditor.  But  the 
inconvenience  in  the  case  put  does  not  extend  beyond  the  necessity 
which  such  a  step  would  occasion,  of  resorting  to  a  different  remedy, 
to  be  applied  in  another  court,  upon  a  bill  to  be  filed  by  the  judgment 
creditor  in  such  other  court  for  the  purpose  of  obtaining  it.  In  a 
court  of  equity  he  might  be  let  in  to  redeem  such  mortgage  incum- 
brances as  stood  in  the  way  of  his  common-law  remedy  by  execution; 
or  he  might  have  a  decree  for  the  sale  of  the  mortgage  term  itself,  in 
satisfaction  of  his  rights  as  an  execution  creditor.  Shirley  v.  Watts  ^ 
is  an  authority  for  this  purpose;  as  is  also  the  case  of  Burdon  v. 
Kennedy.^  In  the  case  of  Lyster  v.  Dolland,^  Lord  Thurlow  was,  at 
\ast,  of  opinion  that  an  equity  of  redemption  of  a  term  could  not  be 

1  3  Atk.  200.  2  3  Atk.  7.39. 

8  Reported  in  3  Bro.  C.  C.  480,  and  1  Ve.s.  Jr.  431. 


SECT.  VII.]  DUNDAS   V.    DUTENS.  443 

taken  in  execution ;  tbcugh,  at  first,  under  an  Apprehension  that  the 
language  of  the  tenth  section  of  the  Statute  of  Frauds  applied  to  such 
a  case,  he  had  inclined  to  hold  otherwise.  But  the  very  silence  of 
that  statute,  which,  while  it  expressly  introduces  a  new  provision  in 
respect  to  lauds  and  tenements  held  in  trust  for  the  person  against 
whom  an  execution  is  sued,  says  nothing  as  to  trusts  of  chattel  inter- 
ests, affords  a  strong  argument  that  those  interests  were  meant  to 
continue  in  the  same  situation  and  plight  in  respect  of  executions  in 
which  both  freehold  and  leasehold  trust  interests  equally  stood  prior 
to  the  passing  of  that  statute.  In  the  absence,  therefore,  of  any 
authority  in  favor  of  the  sale  of  such  an  equitable  interest  under  a 
common-law  execution  against  goods,  we  are  of  opinion,  upon  the 
grounds  already  stated,  that  the  sheriff's  return  of  nulla  bona  in  this 
case,  where  the  defendant  in  the  execution  had  no  other  property 
besides  the  trust  property  in  question,  was  not  a  false  return;  and, 
of  course,  that  the  verdict,  which  has  been  obtained  by  the  plaintiff 
against  the  sheriff  in  this  case,  must  be  set  aside,  and  a  new  trial 
granted.^ 


DUNDAS   V.   DUTENS. 
In  Chancery,  before  Lord  Thurlow,  C,  July  1,  1790. 

[Cited  from  a  note  by  Lord  Manners  in  2  Ball  ^-  Beatty,  233.'^] 

In  the  case  of  Dundas  v.  Dutens,  the  question  was,  whether  stock 
that  had  been  settled  could  be  brought  within  the  reach  of  creditors. 
I  have  a  note  of  that  case,  which  on  this  point  is  more  full  than  the 
printed  report  of  it,  which  I  will  briefly  state.  Lord  Thurlow  says : 
"  Is  there  any  case  where  stock  standing  in  a  trustee's  name  can  be 
made  available  to  pay  debts,  or  that  debts  (and  stock  is  a  chose,  in 
action)  shall  be  transferred  to  creditors  for  that  purpose?  You  can- 
not have  an  execution  at  law  against  such  effects.  The  opinion  in  Horn 
V.  Horn'  is  so  anomalous  and  unfounded,   th.il   forty  such  opinions 

1  LyHter  i;.Y)oIlan<l,  1  Ves.  .Jr.  4.U  ;  Mclcalf  v.  Scholoy,  2  B.  &  P.  N.  U.  461  ;  Cail- 
laud  V.  K.Htwick,  2  Aust.  381 ;  Scarlett  v.  Hanson,  12  C^.  H.  D.  213;  Smith  v.  McCann, 
24  How.  30H;  Krf-rj.lman'.s  Co.  r.  Karlo,  110  11.  S.  710;  I'iatt  v.  Oliver,  2  McL.  207, 
297-98  ;  Colvanl  v.  Coxn,  Duillny  (f  la.),  ;»'.) ;  IlusKcll  v.  Lewis,  2  I'ick.  50H ;  Van  Norman 
D.  Circuit  rfndj^e,  45  Mich.  20t ;  Ciypsnm  Co.  v.  Circuit  .Jmipe,  07  Mich.  031  :  l)i«liorout;li 
V.  Dutcalt,  Sa.xton,  298  ;  Ilofjan  c  ■Iai|UOH,  10  N.  .1.  Kq.  123;  Wilkes  v.  Ferris,  5  .lohns. 
335;  Hendricks  v.  Hohiii.son,  2  .Jolin.'^.  Ch.  283,  312;  Lynch  v.  Utica  Co.,  18  Wend, 
23C  ;  Wright  v  Doiigl.iss,  3  Harl).  5.")4 ;  liice  v.  Burnett,  Speers,  Eq.  579,585;  Brown 
V.  Wood,  f,  Rich.  Ki\.  l.-)5,  167  Acmrd. 

Cw)k  ".  Kennedy,  12  Aln.  42  ;  I'richard  v.  Brown,  4  N.  II.  397;  Ilutcliins  v.  Ilcy- 
wood,  50  N.  II.  491,  roiitra.  —  Ki). 

»  Ves.  .Ir.  196  ;  2  Cox,  240,  s.  c.  —  Lu. 

»  Amb.  79. 


444  DUNDAS   V.   DUTENS.  [CHAP.  III. 

woukl  uot  satisfy  me.  It  would  be  preposterous  and  absurd  to  set 
aside  au  agreement,  which,  if  set  aside,  leaves  the  stock  iu  the  uame 
of  a  person  where  you  could  not  touch  it."  ^ 

1  Caillaud  v.  Estwick,  2  Anst.  384;  Nautes  v  Corrock,  9  Vea.  182,  189  (se77i6/e) ; 
Killer  r.  Kidder,  10  Ves.  3G8;  Plaskett  v.  Dillou,  1  Hog.  328  Accord. 

Horn  v.  Horn,  Anib.  79;  Taylor  v.  Jones,  2  Atk.  600  {semble);  Hadden  i;.  Spader, 
20  Johns.  .554  ;  5  Johns.  Ch.  280 ;  Storm  v.  VVaddell,  2  Sandf.  Ch.  494  (but  see  Donovan 
V.  Finn,  1  Hopk.  59 ;  Bramhall  r.  Ferris,  14  N.  Y.  41,  45 ;  Graff  v.  Uouuett,  31  N.  Y.  9, 
26;  Campbell  v.  Foster,  35  N.  Y.  361,  365),  contra.  — Ed. 

The  explanation  of  tlie  principal  case  lies  in  the  fact  that  by  the  English  decisions 
the  legal  interest  in  a  chose  in  action,  owned  by  a  debtor,  could  not  be  reached  by  his 
creditor,  either  at  law  or  in  equity.  Bank  of  England  v.  Lunn,  15  Ves.  577  {semble) ; 
Guy  V.  Peakes,  18  Ves.  197  (semble);  Francis  v.  Wigzell,  1  Mad.  264  {semble);  Grogan 
V.  Cooke,  2  B.  &  B.  230  {semble) ;  Cochrane  v.  Chambers,  Amb.  79  N.  1  ;  Sims  i-. 
Thomas,  12  A.  &  E.  536.  The  English  rule  on  this  point  was  adopted  by  many  Amer- 
ican Courts.  Shaw  v.  Aveline,  5  Ind.  380;  Stewart  v.  English,  6  Ind.  176;  Peoples  v. 
Stanley,  6  Ind.  410;  Williams  v.  Reynolds,  7  Ind.  622;  Keightley  w.  Wallis,  27  Ind. 
384 ;  Buford  v.  Buford,  1  Bibb,  305  ;  Weribrinner  v.  Weisiger,  3  Mon.  32;  McFerran 
V.  Jones,  2  Litt.  219 ;  Corby  v.  Ross,  3  J.  J.  Marsh.  290 ;  Estill  v.  Rodes,  1  B.  Mon.  314  ; 
Hardenburg  v.  Blair,  30  N.  J.  Eq.  645,  663 ;  Green  v.  Keen,  14  R.  I.  388 ;  Moxon  v. 
Gray,  14  R.  I.  641;  Ewing  v.  Cantrell,  Meigs,  364;  Erwin  v.  Oldham,  6  Yerg.  185; 
White  Co.  V.  Atkeson,  75  Tex.  330  {semble). 

But  in  other  States  the  debtor's  interest  in  a  chose  in  action  is  accessible  to  a 
creditor  by  a  bill  for  equitable  execution.  Watkins  v.  Dorsett,  1  Bland,  530 ;  Sargent 
V.  Salmond,  27  Me.  539;  Drake  v.  Rice,  130  Mass.  410;  Wright  v.  Petrie,  Sm.  &  M. 
282,  320;  Catchings  v.  Manlove,  39  Miss.  655  :  Tappan  v.  Evans,  11  N.  H.  311,  326 ; 
Abbot  V.  Tenney,  18  N.  H.  109;  Chase  v.  Searles,  45  N.  H.  511 ;  Bayard  v.  Hoffman, 
4  Johns.  Ch.  450 ;  Weed  v.  Pierce,  9  Cow.  722 ;  Prosens  v.  Mclntire,  5  Barb.  424, 
433-34  ;  Mc  Gill  v.  Harman,  2  Jones,  Eq.  179  ;  Burton  v.  Farinholt,  86  N.  C.  280.  (But 
see  Doak  v.  State  Bank,  6  Ired.  309,  335.) 

If,  however,  legal  property  is  exempt  from  execution  at  law  on  grounds  of  public 
policy,  it  is  of  course  equally  beyond  the  reach  of  equitable  execution.  McCarthy 
V.  Goold,  1  B.  &  B.  389  (officer's  half-pay);  Matthews  v.  Feavor,  1  Cox,  278 
(copyhold). — Ed. 


CHAP.  IV.]  GOODRIGHT  V.   WELLS.  445 


CHAPTER   IV. 
EXTINGUISHMENT   OF   A  TRUST. 

GOODRIGHT,    Lessee  of  ALSTON,    v.   WELLS  and   Others. 
In  the  King's  Bench,  June  30,  1789. 

[Reported  in  2  Douglas,  771.] 

This  ejectment  was  tried  before  Lord  Mansfield,  in  Middlesex,  at 
the  sittings  after  last  Easter  Term,  and  a  verdict  found  for  the  plaintiff, 
subject  to  the  opinion  of  the  court,  on  a  case,  which,  as  far  as  is 
material  to  be  stated,  was  as  follows : 

James  Selby,  serjeant-at-law,  agreed  for  the  purchase  of  the  estate 
in  question,  and  paid  for  it,  but  died  before  any  conveyance  was  made 
of  it  to  him,  having  by  his  will  [made  subsequent  to  the  agreement], 
devised — "All  the  rest  of  my  real  and  personal  estate  whatsoever, 
and  wheresoever,  to  my  said  wife  in  trust,  that  she  do  thereout 
educate  and  maintain  my  said  son,  until  he  shall  attain  the  'age  of 
twenty-one  years,  and  until  he  shall  have  sufficiently  settled  and  secured 
to,  and  upon,  my  said  wife,  what  is  to  be  settled  upon,  and  given  to, 
her  as  aforesaid,  and,  afterwards,  in  trust,  to  convey  and  dispose  of 
all  the  then  rest  of  my  real  and  personal  estate,  and  the  produce 
thereof,  to  my  said  sou,  his  heirs,  executors,  and  assigns;  but,  in  ease 
my  said  son  shall  die  without  issue  before  he  shall  attain  his  said  age 
of  twenty-one  years,  then  in  trust,  etc."  —  After  the  testator's  death, 
a  conveyance  by  lease  and  release,  of  the  estate  in  question,  was  made 
to  Mrs.  Selby  the  widow,  who  died  befc^re  the  son  attained  his  age  of 
twenty-one  years,  wliich  he  afterwards  ditl  attain,  and  died  in  1772, 
having  been  always  in  possession  of  the  estate  after  the  death  of  his 
mother,  and  iiaving  devi.sed  it  to  charitable  uses,  which  devise  was 
void  by  the  statute  of  mortmain.'  TIr'  lessor  of  (he  plaintiff  was 
hi.s  iieir-at-law  on  the  part  of  the  motlier,  and  the  defendants  his  heirs- 
at-law  on  the  part  of  the  father's  mother. 

The  case  was  argued  on  Friday,  the  2r)th  of  June,  ])y  U'7/.so?i,  for 
tlic  plaintiff,  and  //a//,  for   the  defendants.* 

The  court  to(jk  till  this  day  to  consider,  when  they  delivered  their 
opinions,  to  the   following  effect :  — 

LoKD  Man.sh'ieli)  (after  stating  the  case),  —  Serjeant  Selby,  after 
his  purchase,  was  owner  of  the  equitable  estate,  and  had  a  right  to  go 

•  1  9  Geo.  2,  r.  .10. 

'  The  argnments  of  rnnn.oi  ..—    -  •..-  i 


446  GOODRIGHT   V.   WELLS.  [CHAP.  IV. 

into  ClKUicorv  to  compel  a  conveyance.  After  bis  death,  the  vendor 
conveyed  to  the  widow,  which  conveyance,  on  the  condition  of  the 
son's  living  till  twenty -one,  and  making  a  certain  provision  for  her, 
was  to  be  absolutely  in  trust  for  him.  He  outlived  his  mother,  and  on 
her  death,  the  trust  estate  was  completely  vested  in  liim  (the  subsequent 
limitations  in  the  will  being  on  contingencies  which  never  happened), 
and  the  legal  estate  descended  to  him  from  her.  The  question  is.  To 
whom  the  whole  estate  descended  on  the  death  of  the  son?  for  it  did 
descend,  the  devise  to  charitable  uses  being  void.  If  it  descended  from 
the  mother,  the  lessor  of  the  plaintiff  takes  as  heir-at-law.  But,  it 
was  contended,  that,  though  he  is  heir,  there  is  a  trust  for  the  paternal 
heirs ;  and  it  was  said  to  be  settled,  that  the  court  will  not  suffer  a 
trustee  to  recover  in  ejectment,  against  the  cestui  que  trust.  When 
this  was  mentioned  on  the  trial,  I  said,  as  I  did  the  other  day  in  the 
case  of  Doe  v.  Putt  ^  that  this  rule  is  subject  to  the  qualification,  of 
its  being  clearly  the  case  only  of  a  mere  trust,  for  then,  by  taking 
notice  of  it,  the  court  prevents  delay  and  expense ;  but  it  will  not 
decide  when  there  is  a  doubt,  but  leave  the  question  to  a  jurisdiction 
which  regularly  takes  cognizance  of  matters  of  trust.  The  counsel 
said,  there  might,  perhaps,  be  cases  on  the  subject,  and  the  parties 
wished  to  have  the  opinion  of  the  court.  Now,  who  is  to  be  consid- 
ered as  heir-at-law  on  this  ejectment?  It  would  be  sufficient  for  the 
judgment  which  I  shall  deliver  to  say,  that  it  is  not  a  clear  case  that  the 
lessor  of  the  plaintiff  is  a  mere  trustee,  for,  that  point  being  doubtful, 
he  is  entitled  to  recover  at  law,  as  he  certainly  has  the  legal  right. 
But  I  will  go  farther,  and  throw  out  some  observations,  to  show-,  that 
it  is  not  only  doubtful,  but  that  the  inclination  of  my  opinion  is, 
that  you  cannot  support  such  a  trust.  A  case  so  circumstanced,  in 
every  particular,  probably  never  existed  before,  and  perhaps,  never 
ma}'  happen  again.  But,  cases  must  often  have  happened  on  which 
the  general  question  would  arise ;  viz.  Whether,  when  cestui,  qiie 
trust  takes  in  the  legal  estate,  possesses  under  it,  and  dies,  the  legal 
and  equitable  estate  shall  open  on  his  death,  and  be  severed  for  the 
different  heirs?  Consider  it,  first,  upon  authority;  and,  secondly, 
upon  principle.  1.  No  case  has  ever  existed  where  it  has  been  so 
held  ;  none  where  the  heir-at-law  of  one  denomination  has,  on  the 
death  of  the  ancestor,  been  considered  as  a  trustee  for  the  heir-at-law 
of  another  denomination,  who  would  have  taken  the  equitable  estate, 
if  that  and  the  legal  estate  had  not  united.  2.  On  principle,  it  seems 
to  me  impossible ;  for  the  moment  both  meet  in  the  same  person, 
there  is  an  end  of  the  trust.  He  has  the  legal  interest,  and  all  the 
profits,  by  his  best  title.  A  man  cannot  be  a  trustee  for  himself. 
Why  should  the  estates  open  upon  his  death?  What  equity  has  one 
set  of  heirs,  more  than  the  other?  He  may  dispose  of  the  whole 
as  he  pleases  and,  if   he  does  not,  there  is   no  room  for  Chancery 

1  2  Doug.  721,  722. 


CHAP.  IV.]  GOODEIGHT   V.    WELLS.  447 

to  interpose,  and  the  rule  of  law  must  prevail.  The  case  iu  the 
Common  Pleas  is  an  authority,  if  it  went  on  this  ground,  and  I  am 
told  it  did.  There,  the  cestui  que  trust  taking  the  legal  estate  as  a 
purchaser,  the  descent  was  altered.  Qudcunque  via  data,  therefore, 
the  lessor  of  the  plaintiff  is  entitled.  If  the  question  is  doubtful,  then, 
in  this  court,  the  legal  right  must  prevail ;  and,  if  the  weight  of  opinion 
and  argument  is,  that  the  legal  estate  must  draw  the  trust  after  it,  the 
case  is  still  stronger  against  the  defendants. 

WiLLES,  J.  I  entirely  agreed  with  my  Lord  as  to  the  legal 
estate,  but  my  doubt  is,  what  is  become  of  the  equitable  use.  Let  us 
see  how  the  facts  stand.  The  money  was  paid  by  the  father,  but 
he  died  before  any  conveyance,  devising  as  stated  in  the  case.  Now, 
what  was  the  ancient  use  ?  It  was  to  the  heirs  ex  parte  paternd.  I  do 
not  agree,  that  there  is  no  difference  as  to  the  different  heirs.  "When 
the  question  is  between  those  of  the  paternal  and  those  of  the  mater- 
nal line,  the  law  always  gives  the  preference  to  the  former.  After  the 
father's  death,  a  conveyance  was  made  to  the  widow  and  her  heirs,  iu 
trust.  So,  the  estate  iu  her  was  not  absolute,  but  charged  with  the 
trust.  Suppose  the  son,  in  his  lifetime,  had  called  in  the  legal  estate, 
and  become  a  purchaser,  there  is  not  a  doubt,  but,  in  that  case,  the 
paternal  heirs  would  have  succeeded.  There  having  been  no  such 
conveyance  to  him,  the  legal  estate  descended  to  him  from  the  mother. 
But  I  think  he  took  it  clothed  with  the  trust,  and  subject  to  the  ancient 
use.  I  do  not  say  he  was  a  trustee  for  himself,  but  this  ancient  use 
remained  uncontrolled,  and  revived,  as  between  the  different  heirs, 
on  his  death,  no  act  having  been  done  to  alter  it.  If,  therefore,  the 
question  were  to  come  before  me  in  another  court,  I  should  decree  a 
trust  in  the  les.sor  of  the  plaintiff.  But  he  certainly  is  entitled  to  the 
legal  estate,  and  that  is  enough  here. 

A.siiiiLK.sT,  J.  We  all  agree,  that,  if  there  is  a  doubt  as  to 
the  trust,  the  lessor  of  the  plaintiff  is  entitled  to  the  estate  in  this 
court,  and,  therefore  it  is  not  necessary  to  give  any  opinion  on  the 
other  point.  But,  as  it  has  been  moved,  I  will  mention,  that  I  am 
inclined  to  be  of  opinion,  tliat  the  trust,  as  well  as  the  legal  estate, 
shall  go  to  the  heirs  ex  parte  ^iternn.  To  support  the  contrary 
position,  it  must  be  said,  that  the  son  took  as  trustee  for  himself  and 
his  paternal  heirs,  for  I  do  not  sec  how  the  estate  shall  open  for  the 
heirs,  if  he  was  not  himself  a  trustee.  I  never  knew  any  case  whore 
the  court  held,  when  an  estate  came  by  descent,  that  tlie  heir  was  a 
trustee  although  the  ancestor  \«fi.s  not.  The  case  in  the  Common 
Pleas*  goes  a  great  way  to  determine  this  question;  for  it  shews,  that, 
where  the  trust  and  legal  estates  join,  they  shall  both  go  according 
to  tlie  legal  estate. 

BiLi.KU,  .1.  I  am  entirely  of  the  same  opinion  with  my  Lord, 
and  my  brother  Ashhurst,  on  both  points.     On  the  lirst,  wc  arc  all 

1  Doe  V.  Putt,  2  Doug,  773. 


448  GOODKIGHT   V.    WELLS.  [CHAP.  IV. 

aijreed.  As  to  the  second,  it  is  observable,  that  no  case  has  been 
cited,  nor  do  I  believe  any  ever  existed,  where,  in  a  court  of  equity, 
an  heir  of  one  sort  has  been  determined  to  hold  as  trustee  for  an  heir 
of  the  other  sort.  In  a  court  of  law,  try  the  question  by  the  principle 
stated  by  Mr.  Batt,  viz.  that,  where  two  titles  unite,  the  party  shall  be 
in  of  the  best.  ^Vhat  is  the  better  title  here?  The  clear  fee-simple 
estate  which  descended  from  the  mother.  I  think  there  is  a  mistake  in 
taking  the  heirs  on  either  side  into  consideration.  They  had  no  interest 
during  the  life  of  the  ancestor ;  the  whole  was  in  him.  The  only  person 
to  be  considered  is  the  ancestor,  who  was  seised  in  fee  both  of  the 
legal  and  equitable  estate.  A  case  has  been  put,  which  does  not  in 
my  opinion  vary  the  question,  viz.  the  case  of  the  son's  having  called 
for  a  conveyance.  However,  as  the  mother  died  before  he  came  of 
age,  and  she  was  not  directed  to  convey  till  then,  that  case  does  not 
'■^PPb'-  ^^'^  ^^"^  to  take  the  facts  as  they  stand.  To  be  sure,  if  he  had 
taken  the  legal  estate  by  purchase,  the  paternal  heirs  would  have 
been  entitled,  but,  as  he  took  it  by  descent  from  his  mother  (and  the 
case  would  have  been  the  same  if  we  suppose  her  to  have  lived  beyond 
his  age  of  twenty-one,  and  that  he  never  called  for  a  conveyance),  I 
think  the  trust  was  merged  and  gone. 

The  Postea  to  be  delivered  to  the  plaintiff.* 

1  Doe  V.  Putt,  Doug.  773  (cited) ;  Wade  v.  Paget,  1  Bro.  C.  C.  363,  1  Cox,  74  s.  c; 
Selby  V.  Alston,  3  Ves.  339 ;  Langley  v.  Sneyd,  1  S.  &  S.  45 ;  Wood  v.  Douglas,  28 
Ch.  b.  327  ;  Creagh  v.  Blood,  3  Jon.  &  Lat.  133 ;  Conolly  v.  Conolly,  1  Ir.  11.  Eq.  376 ; 
Hopkinson  v.  Dumas,  42  N.  H.  296  ;  Cooper  v.  Cooper,  1  Ilalst.  Ch.  9  ;  Wills  v.  Cooper, 
1  Dutch.  137;  Whyte  v.  Arthur,  17  N.  J.  Eq.  521  ;  Nicholson  v.  Halscy,  1  John.  Ch. 
417;  Gardner  y.  Astor,  3  Johns.  Ch.  53;  Greene  v.  Greene,  125  N.Y.  .506,  510;  Peacock 
V.  Stott,  101  N.  Ca.  149  ;  Shepard  v.  Taylor,  15  R.  I.  204  Accord. 

A  trust  may  be  terminated  by  a  surrender  of  the  legal  title  by  the  trustee  to  the 
cestui  que  trust,  as  in  Miller  v.  Simonton,  5  S.  Ca.  20 ;  or  by  a  conveyance  by  the  trustee 
and  cestui  que  trust  to  a  third  person,  as  in  Parker  v.  Converse,  5  Gray,  336 ;  or  by  a 
release  by  the  cestui  que  trust  to  the  trustee,  as  in  Newman  v.  Newman,  supra,  335 ; 
Owings  V.  Owings,  3  Ind.  142;  Ormsby  v.  Dumesnil,  91  Ky.  601  ;  or,  in  the  absence 
of  a  statute  to  the  contrary,  by  the  escheat  of  the  legal  title  of  land  held  in  trust, 
as  in  King  t;.  Mildmay,  supra,  348. 

A  trust,  revocable  by  the  terms  of  its  creation,  may  of  course  be  extinguished  by 
the  exercise  of  the  power  of  revocation.    Yard  v.  Pittsburgh,  131  Pa.  205.  —  Ed. 


SECT.  I.]  SAUNDERS   V.   NEVIL.  449 


CHAPTER  V. 
THE  DUTIES   OF  A  TRUSTEE. 


SECTION  I. 

To  convey  the  Trust-res  as  the  Cestui  que  Trust  directs. 

SAUNDERS   V.   NEVIL. 
In  Chancery,  before  Sir  John  Trevor,  M.  R.,  January  24,  1701. 

[Reported  in  2  Vernon  ( Raithby'a  Edition),  428.] 

A  TRUST  being  limited  to  the  plaintiff  and  the  heirs  of  his  body, ^  with 
remainders  over ;  the  bill  was  to  have  the  trustees  convey  to  him  in 
fee.2 

The  Master  of  the  Rolls  decreed  them  to  convey  an  estate  tail 
only,  and  refused  to  decree  a  conveyance  in  fee ;  and  the  case  of  Mr. 
Cooke  and  Woodward  was  cited,  where  the  Lord  Jefferies  did  refuse  to 
decree  a  conveyance  in  fee,  the  remainder  after  au  estate  tail  being 
limited  to  a  charity.' 

'  And  in  default  of  heirs  of  the  plaintiff's  body,  or  aocordinp;  to  the  answor,  if  ho 
should  die  without  heirs  of  his  body,  then  remainder  over;  the  rents  and  prolit.s  to  l)0 
applied  in  his  maintenance  till  twentv-four,  and  the  surplus,  if  any,  to  be  paid  to  iiiin. 
K.  L. 

•^  This  is  not  correct ;  thb  bill  wa.s  for  a  conveyance  to  plaintiffs  and  the  heirs  of  his 
body,  he  having  attained  twenty-four,  and  had  two  children  in  inarriaj^e,  and  the  defend- 
ants insisteil  that  the  will  being  so  worded  it  was  the  intention  of  tlio  testatrix  that  the 
plaintiff  should  not  have  the  legal  estate,  nor  be  enabled  to  dock  the  entail  ;  but  that 
the  premises  should  be  preserved  for  the  heirs  of  the  body  of  the  j)laintiff,  if  he  should 
leave  any  at  his  death,  or  in  default  thereof  for  the  persons  in  remainder ;  and  the 
decree  was,  that  the  defendants,  the  trustees,  should  execute  a  conveyance  of  the  estate 
in  (|uestion  to  the  plaintiff  and  the  heirs  of  his  body.     Heg.  Lib.  1701,  H,  fol.  103. 

''  I'ayne  v.  Harker,  Sir  O.  Bridgman,  24  {scmhie),  Accord.   See  also  Talbot  r.  Wliit 
field,  Hiinb.  204.  — En. 

"  I  can  conceive,  although  it  would  l)e  a  strange  and  nnnsnal  mode  <<{  convey- 
ancing, a  conveyance  or  devise  to  a  man  and  the  heirs  of  his  boily  in  trust  for  A.  B., 
and  his  heirs ;  and  then  the  estate  tail  would  bo  held  in  trust  for  A.  B.,  and  A.  B. 
could  call  upon  the  tenant  in  tail,  I  dare  say,  to  bar  the  estate  tail  and  to  enlarge  it 
into  a  fee  for  his  benefit,"  Per  Lord  Cairns,  C,  in  Dawkins  v.  Tcurhyn,  4  App.  Ca*. 
51,  60. —  Ed. 

29 


450  HEAD   r.    LOUD   TEYNHAM.  [CHAP.  V. 


TURNER   v.   BUCK   and  Another. 
In  Chancery,  before  Loud  Cowper,  C.     Easter  Term,  1715. 

[Repotied  in  22  Viner's  Abridgment,  21,  piacituin  5.] 

T.  SOLD  to  C.  an  estate  which  he  claimed  as  heir  to  his  father  by  virtue 
of  a  marriage  settlement  upon  the  marriage  of  his  father  with  his  mother* 
ill-law,  M.,  being  the  lands  of  the  same  M.  —  B.,  as  heir  under  that 
settlement,  brought  a  Ijill  to  discover  the  title  of  T.  and  C,  and  also  to 
compel  the  surviving  trustee  in  a  former  settlement  in  the  family  to 
convey  to  B.  as  heir  under  the  settlement. 

Cow'PEu,  C,  declared  he  would  not  decree  the  trustee  to  convey 
the  legal  estate  to  the  cestui  que  trust  to  compel  him  to  suffer  the 
cestui  que  trust  to  bring  an  ejectment  in  his  name  against  C,  because  he 
was  a  purchaser  without  notice  of  this  former  settlement,  and  cestui 
que  trust  was  a  volunteer;  and  said  it  was  a  constant  rule  in  equity 
never  to  aid  any  person  who  claims  by  a  voluntary  settlement,  against 
a  fair  purchaser  without  notice ;  as  in  the  case  of  a  disseisor  [as  it 
now  appeared  that  it  was]  who  conveys  away  the  lands  upon  a  valu- 
able consideration,  this  court  will  not  compel  the  trustee  to  convey 
the  legal  estate  to  cestui  que  trust,  to  enable  him  to  recover  the  pos- 
session at  law  against  the  purchaser,  but  the  trustee  may  do  it  himself 
if  he  think  fit ;  but  this  court  will  not  compel  him  to  it.  Though  Sir 
J.  Jekyll  and  Mr.  Vernon  insisted  strongly  for  it,  and  said  the  posses- 
sion of  the  trustee  was  the  possession  of  the  cestui  que  trust,  and  that 
it  was  a  breach  of  trust  in  the  trustee  not  to  convey  at  any  time  to 
cestui  que  trust  on  request.  But  in  this  case  Lord  Cowper  decreed  that 
T.  should  account  for  the  profits  of  the  estate  from  his  entry  to  the 
time  of  the  conveyance  to  C,  for  he  was  a  disseisor,  though  T.  bad 
two  verdicts  for  him  in  ejectment;  but  this  old  settlement  was  dis- 
covered after  those  trials. 


HEAD  V.   LORD   TEYNHAM. 

In  CnANCERY,  before  Lord  Loughborough,  Sir  W.  H.  Ashhurst,  J., 
AND  Sir  Beaumont  Hotham,  B.,  Commissioners,  December,  1783. 

[Reported  in  1  Cox,  57.] 

Bill  to  carry  the  trusts  of  a  will  into  execution,  whereby,  amongst 
other  things,  lands  were  limited  to  trustees  for  a  term  of  five  hundred 
years  to  raise  £4,000  for  younger  children's  portions.  There  being  six 
younger  children  entitled  under  this  limitation  to  have  the  £4,000,  two 
of  them  assigned  their  shares  of  the  £4,000  to  a  trustee  for  the  benefit 
of  two  other  of  the  children.     And  the  only  question  was,  whether  it 


SECT.  I.]  GOODSON   V.   ELLISSON.  451 

was  necessary  that  this  trustee  should  be  a  party  to  this  suit.  For 
plaintiff  it  was  insisted  that  as  the  original  trustees  of  the  term  who 
had  the  legal  estate,  and  all  the  children  who  had  the  beneficial  interest, 
were  before  the  court,  there  was  no  occasion  to  make  the  other  trus- 
tee a  party,  and  the  court  would  direct  a  sale  of  the  term  without  his 
joining  in  the  sale ;  and  of  that  opinion  was  the  court,  and  decreed 
accordingly.^ 


GOODSOX  r.  ELLISSON. 

In  Chanxeet,  before  Lord  Eldon,  C,  August,  1824;  March,  July, 
Decembeu,  1»2G;  April  21,  1827. 

[Reported  in  3  Russell,  583.] 

Eldox  (Lord  CnANCELLOR).^  In  1767  a  deed  was  executed,  and  I 
will  assume  that  a  fine  was  properly  levied  in  pursuance  of  it,  by  which 
an  estate  was  granted  and  conveyed  to  Richard  Ellisson  and  his  heira 
on  certain  trusts.  The  bill  deduces  the  various  changes  of  the  title 
to  the  equitable  interest,  which  occurred  between  17G7,  and  Novem- 
ber, 1822,  bringing  it,  in  1819,  into  eight  different  persons,  each  of 
whom  is  represented  as  the  owner  of  an  undivided  eighth  part  of  the 
property.  These  eight  persons  sell  the  property  in  different  lots  to 
different  persons;  and,  the  present  plaintiff  having  bought  one  of  the 
lots,  a  deed  is  prepared,  conveying  certain  parcels  of  land  to  him; 
that  deed  the  eight  persons  who  are  represented  as  the  owners  of  the 
beneficial  interest  have  executed;  and  the  co-heiresses  of  Richard 
Ellisson  are  also  required  to  execute  it.  They  refuse,  and  the  bill  is 
HUkI. 

The  Master  of  tlie  Rolls  has  ordered  the  defendants  to  exoouto  the 
convej'ance,  and  to  pay  the  costs  of  the  suit. 

Now,  even  if  the  plaintiff  had  been  the  purchaser  of  the  whole  estate, 
and  the  conveyance  had  related  to  the  whole,  it  would  have  been  a 
matter  for  consideration,  whether  the  trustees  would  Jiol  have  a  right, 
where  there  has  bi-en  so  much  devohition  of  title,  to  have  liie  title 
examined  in  this  court,  instead  of  being  required  to  acquiesce  in  an 
opinion  which  was  not  clothed  witji  the  sanction  of  judicial  authority, 
liiit  this  plaintiff  is  the  piu'chaser  of  only  sixteen  acres  of  the  prop- 
erty, and  the  rest  of  the  estate  has  Ih'imi  sold  to  other  jiorsons  in 
different  lots!  Now,  I  confess  it  is  (juite  new  to  me  to  be  informed 
that  you  can  call  on  a  trustee  from  time  to  time  to  divest  himself  (;f 
different  i)arcel8  of  the  trust  estate,  so  as  to  involve  himself  as  a  party 
to  conveyances  to  twenty  different  persons.     lias  not  a  trustee  a  right 

»  Compare  Wood  v.  Williams,  4  Ma<l.  1.56 ;  Copo  v.  Parry,  2  J.  &  W.  .538.  — Ed, 
'  Only  the  opinion  of  Lonl  Eldon,  and  that,  too,  Blightly  aljridgcd,  i»  given.  —  Kd. 


452  GOODSON   V.   ELLISSON.  [CHAP.  V. 

to  say,  "If  you  mean  to  divest  me  of  my  trust,  divest  me  of  it  alto- 
gether, and  then  make  your  conveyances  as  you  think  proper?"  I 
have  been  accustomed  to  think  that  a  trustee  has  a  right  to  be  delivered 
from  his  trusts,  if  the  cestuis  que  trust  call  for  a  conveyance. 

Anothor  principle  which  has  been  lost  siglit  of  in  this  decree  is,  that 
a  trustee  can  be  called  on  to  convey  only  by  the  words  and  descriptions 
by  which  the  conveyance  was  made  to  him.  In  this  respect  he  is  like 
a  mortgagee. 

I  see  nothing  in  the  record  which  would  have  hindered  me  from 
directing  these  ladies  to  convey,  if  I  had  such  parties  before  me  as 
would  have  enabled  me  to  direct  a  conveyance  of  the  whole  estate.  Jf 
the  cestui^  que  trust  had  all  been  here,  they  might  have  prayed  that 
the  sixteen  acres  in  question  might  be  conveyed  to  Goodson,  and  the 
residue  of  the  estate  to  a  trustee  on  trust  to  convey  to  the  other  pur- 
chasers.    As  the  suit  is  framed,  I  cannot  take  that  course. 

The  following  decree  was  made:  "His  Lordship  doth  order  that  the 
decree  made  in  this  cause,  the  18th  of  August,  1824,  be  reversed;  and 
it  is  ordered  that  it  be  referred  to  the  Master  to  inquii'e  and  state  to 
the  court  whether  the  plaintiff  is  entitled  to  that  beneficial  eqwiteible 
estate  which  he  seeks  to  have  clothed  with  a  legal  estate  by  convey- 
ance; and  in  making  the  said  inquiry  it  is  ordered  that  the  Master 
do  ascertain  and  state  to  the  court  whether  all  prior  vested  and  con- 
tingent equitable  titles  have  failed  by  deaths  or  non-existence  of 
persons  who  would  have  taken  before  the  plaintiff,  &c.  And  it  is 
ordered  that  the  said  Master  do  tax  the  costs  of  the  defendants  of  this 
suit  to  this  time,  including  their  costs  of  the  appeal,  as  between  party 
and  party,  that  the  same,  when  taxed,  be  paid  by  the  plaintiff  to  the 
defendants;  but  this  taxation  is  to  be  without  prejudice  as  to  whether 
the  defendants  shall  not  be  finally  entitled  to  any  further  costs,  charges, 
and  expenses ;  and  his  Lordship  doth  reserve  the  consideration  of  all 
further  directions,  and  whether  the  defendants  shall  be  allowed  any 
further  costs,  charges,  and  expenses  up  to  this  time,  and  also  the 
consideration  of  all  subsequent  costs,  charges,  and  expenses,  until 
after  the  Master  shall  have  made  his  report."  ^ 

1  In  Re  Radcliffe,  '92,  1  Ch.  227;  Inches  v.  Hill,  106  Mass.  575;  Henderson's 
Estate,  1 5  Phila.  598,  —  one  of  several  cestuis  que  trust  obtained  a  decree  for  a  convey^ 
ance  of  his  share  of  the  trnst  property. 

In  Rhoads  v.  Rhoads,  43  Til.  239;  Gunn  v.  Brown,  63  Md.  96;  Seamans  v.  Gibbs, 
132  Ma-^s.  239 ;  Zabriskie  v.  Wetmore,  26  N.  J.  Eq.,  18;  Hutchison's  Ap.  82  Ta.  509,— 
a  bill  filed  by  one  of  several  cfslnis  que  trust  for  a  conveyance  of  his  share  was  dis- 
missed, not  however  on  the  ground  taken  by  Lord  Eldon,  but  out  of  regard  for  the 
iiitetition  of  the  creator  of  the  trust.  See  also  Richard.son's  Est.,  16  Phila.  326;  Smith 
V.  Snow,  3  >Tad.  10;  Thompson  i>.  Galloupe,  100  Mass.  435. 

•  In  Russell  v.  Grinncll,  105  Mass.  425  ;  Cooper  v.  Cooper,  36  N.  .T.  Eq.  121  ;  Moss's 
Est..  15  Phila.  516.  —  an  equitalde  tenant  for  life  was  not  permitted  to  obtain  a  con- 
veyance of  a  legal  life  estate.  —  Ed. 


SECT.  I.]  WATTS   V.    TURNER.  453 


WATTS  V.   TURNER. 
In  Chancery,  before  Sir  John  Leach,  M.   R.,  July  6,  1830. 

[Reported  in  1  Russell  ^  Mylne,  634.] 

A  TRUST  estate  descended  to  the  defendant ;  and  the  plaintiff,  who 
was  cestui  que  trust,  being  entitled  to  the  legal  estate,  a  draft  of  the 
intended  conveyance  was  sent  to  the  solicitor  of  the  defendant,  and 
approved  of  by  him.  The  defendant  afterwards  refused  to  execute  the 
conveyance  unless  the  plaintiff  paid  him  a  sum  of  money.  The  bill  was 
filed  to  compel  a  conveyance. 

Mr.  Pemheii,on,  and  Mr.  Ohinrj,  for  the  plaintiff. 

Mr.  Wilbraham,  for  the  defendant,  the  trustee,  submitted,  that  as 
the  plaintiff  had  chosen  to  file  a  bill,  instead  of  applying  for  a  convey- 
ance in  a  summary  way  by  petition  under  the  statute,  he  had  himself 
to  blame  for  any  trouble  and  expense  he  had  incurred. 

The  Master  of  the  Rolls  made  the  decree  against  the  defendant, 
with  costs.^ 

1  lu  Y.  B.  38  Hen.  VI.  35.  pi.  23 ;  Cary,  13 ;  Jones  v.  Lewis,  1  Cox,  199 ;  Willis  v. 
Hiscox,  4  M.  &  Cr.  197  ;  Holford  v.  Phipps,  3  Beav.  434 ;  Thorby  v.  Yeats,  1  Y.  &  C. 
C.  C.  438;  Campbell  v.  Home,  1  Y.  &  C.  C.  C.  664  ;  Penfold  v.  Bouch,  4  Hare,  271 ; 
Firmin  v.  Pulham,  2  De  G.  &  Sm.  99 ;  Devey  v.  Thornton,  9  Hare,  222,  232  ;  King  v. 
King,  1  De  G.  &  J.  6G3 ;  Palairet  v.  Carew,  32  Beav.  564  (see  also  Re  Knox,  '95,  1  Ch. 
538,  under  Trustee  Act  of  1893) ;  Pearce  v.  Byers,  25  111.  Ap.  51 ;  Warren  v.  Ireland, 
29  Me.  62,  68  ;  Paine  v.  Forsaith,  86  Me.  357  ;  Keid  i:  Gordon,  35  Md.  174  ;  Hunne- 
well  V.  Lane,  11  Met.  163;  Smith  v.  Harrington,  4  All.  566;  Bowditch  i'.  Andrews,  8 
AH.  339;  Slater  v.  Hurlbut,  146  Mass.  308;  Whall  v.  Converse,  146  Mass.  345;  Sears 
V.  Choate,  146  Mas-s.  395;  Felton  c.  Sawyer,  41  N.  H.  202;  Archer  r.  American  Co., 
50  N.  J.  Eq.  33  ;  Battle  v.  Pctway,  5  Ired.  576 ;  Turnage  v.  Greene,  2  Jones,  Eq.  63  ; 
Matthews  v.  McPherson,  65  N.  C.  189;  Taylor  v.  Huber,  13  Oh.  St.  288;  Freyvogle  v. 
Hiighe-s,  56  Pa.  22'< ;  Mcgargee  !'.  Naglcc,  64  Pa.  216;  Hepburn's  App.,  65  Pa.  468; 
Culbertson's  App.,  76  Pa.  145;  McndoiiliaH's  Apj).,  151  Pa.  214;  Fislicr  i:  Wister,  154 
I'a.  65;  Clark's  Est..  15  Phila.  573;  Hubb's  Est.,  16  Phila.  211;  Ives  »;.  Harri.s,  7 
H.  I.  413;  Taylor  v.  Ta}lor,  9  H.  L  119;  Greene  v.  Aborn,  10  R.  L  10  {sujira);  Hugers 
V.  Rogers,  10  H,  I.  556;  Nightingale  r.  Nightingale,  13  R.  I.  113;  Wiiclan  v.  Reilly. 
3  W.  Va.  597,  613,  —  the  ri^ht  of  a  restui  r/ue  trust  to  compel  a  conveyance  of  the  legal 
estate  by  the  tru-stee  was  fnlly  recognized. 

But  SCO  contrii,  Ring  r.  McCoun,  10  N.  Y.  268 ,  Lent  v.  Howard.  89  N.  Y.  169,  181  ; 
A,«chc  V.  A.sche,  113  N.  Y.  232;  Cuthbert  r.  Chauvet,  136  N.  Y.  326;  Re  Lewis's  Est., 
23  N.  Y.  Sup.  287. 

Compare  Farrington  v.  p'armers'  Co.,  21  N.  Y.  Sup.  194. 

If  there  are  several  rrsiuis  i/w  Irn.it  tin-  triistc"'  will  not  bo  conipcilcil  to  convoy 
unleHM  all  concur  in  demanding  the  itcmvi'vain'o.  (iorard  c.  nm-klcy,  l'!7  MiiMS.  475; 
Twining  v.  Girard  Co.,  14  Phila.  74;  Conrow's  App.  3  Pennyp.  350. 

There  is,  of  course,  nothing  to  prevent  a  Irusloo  from  voluntarily  convoying  the 
legal  title  to  the  person  or  porsons  having  the  onliro  n(piit;iblc  intorost.  Stone's  Case, 
1.3S  Mass.  476.    But  see  Lent  v.  Howard,  89  N.  Y.  169,  181.  — Ed. 


454  SAUNDERS    V.    VAl'TIER.  [CHAP.  V. 


SAUNDERS  V.  VAUTIER. 
In  Chancery,  before  Lord  Langdale,  M.  R.,  May  7,  1841. 

[Reported  in  4  Beavan,  115.] 

The  testator,  Richard  Wright,  by  his  will,  gave  and  bequeathed 
to  his  executors  and  trustees  thereinafter  named  all  the  East  India 
stock  which  should  be  standing  in  his  name  at  the  time  of  his  death, 
upon  trust  to  accumulate  the  interest  and  dividends  which  should 
accrue  due  thereon,  until  Daniel  Wright  Vautier  should  attain  his  age 
of  twenty-five  years,  and  then  to  pay  or  transfer  the  principal  of  such 
East  India  stock,  together  with  such  accumulated  interest  and  divi- 
dends, unto  the  said  Daniel  Wright  Vautier,  his  executors,  admin- 
istrators, and  assigns,  absolutely.  And  the  testator  devised  and 
bequeathed  hie  residuary  real  and  personal  estate  to  the  persons  in 
his  will  named. 

The  sum  of  £2,000  East  India  stock  was  standing  in  the  testator's 
name,  at  his  death,  in  1832.  A  suit  was  afterwards  instituted  for  the 
administration  of  the  testator's  estate;  and  Daniel  Wright  Vautier 
being  an  infant,  a  reference  in  the  cause  was  made  to  the  Master,  to 
approve  of  a  sum  to  be  allowed  for  his  maintenance.  The  Master 
reported  his  fortune  to  consist  of  the  P2ast  India  stock  in  question, 
and  reported  that  £100  a  year  ought  to  be  allowed  for  his  maintenance 
out  of  the  dividends  thereof. 

Sir  C.  C.  Pepys,  who  was  then  Master  of  the  Rolls,  by  an  order 
dated  the  25th  of  July,  1835,  confirmed  the  report,  and  ordered  the 
payment  of  £100  a  year  out  of  the  dividends  of  the  East  India  stock, 
for  the  maintenance  of  the  infant,  Daniel  Wright  Vautier. 

Daniel  Wright  Vautier  attained  twenty-one  in  March,  1841,  and 
presented  a  petition  to  have  a  transfer  of  the  fund  to  him. 

Mr.  Fembertnn  argued  that  the  petitioner  had  a  vested  interest,  and 
that  as  the  accumulation  and  postponement  of  payment  was  for  his 
benefit  alone,  he  might  waive  it  and  call  for  an  immediate  transfer  of 
the  fund.     Josselyn  v.  Josselyn.^ 

The  Master  of  the  Rolls.  I  think  that  principle  has  been 
repeatedly  acted  upon;  and  where  a  legacy  is  directed  to  accumulate 
for  a  certain  period,  or  where  the  payment  is  postponed,  the  legatee, 
if  he  has  an  absolute  indefeasible  interest  in  the  legacy,  is  not  bound 
to  wait  until  the  expiration  of  that  period,  but  may  require  payment 
the  moment  he  is  competent  to  give  a  valid  discharge. 

Mr.  Ktndersli^j/,  for  the  residuary  legatees,  most  of  whom  are  in- 
fants, was  proceeding  to  argue  that  the  petitioner  did  not  take  a 
vested  interest  until  he  attained  twenty-five,  but  the  Master  of  the 
Rolls  observed  that  the  contrary  must  have  been  decided  or  assumed 

1  9  Sim.  63. 


SECT.  I.] 


CLAFLIN  V.   CLAFLIN. 


455 


Tvhen  the  order  for  m^iutenance  had  been  made  by  the  present  Lord 
Chancellor.  He  did  not,  at  present,  see  any  reason  to  doubt  the  pro- 
priety of  that  order,  but  the  argument  must  assume  it  to  be  erroneous, 
and  call  upon  him  to  decide  in  a  different  manner,  and  he  thought 
that  it  would  be  inconvenient  to  argue  again,  in  this  court,  a  point  on 
which  the  judge  of  the  court  of  rehearing  had,  probably,  already 
expressed  an  opinion. 

The  cause  stood  over,  with  liberty  to  apply  to  the  Lord  Chancellor, 
when  the  Lord  Chancellor  held  the  legacy  vested,  and  ordered  the 
ti'ausfer.^ 


ADELBERT   E.   CLAFLIN  v.   WILLIAM   CLAFLIN  akd 

Others. 

In  the  Supreme  Judicial   Court,  Massachusetts,  March  2,  1889. 

{^Reported  in  149  Massachusetts  Reports,  19.] 

Field,  J.^    By  the  eleventh   article   of   his   will  as  modified   by  a 
codicil,  Wilbur  F.  Claflin  gave  all  the  residue  of  his  personal  estate  to. 
trustees,  "to  sell  and  dispose  of  the  same,  and  to  pay  to  my  wife, 
Mary  A.  Claflin,  one  third  part  of  the  proceeds  thereof,  and  to  pay  to 

1  Cr.  &  Ph.  240.  See  to  the  same  effect  Jo-sselyn  v.  Josselyn,  9  Sim.  63 ;  Jackson 
V.  Marjorilianks,  12  Sim.  93;  Curtis  v.  Lukin,  5  Beav.  147,  15.5,  156  (semhle);  Rocke 
V.  Uocke,  9  lieav.  66 ;  Coveutry  v.  Coventry,  2  Dr.  &  Sm.  470 ;  Re  Jacob's  Will,  29 
Beav.  402;  Tatham  y.  Vernon,  29  Beav.  604,617;  Bnttansliaw  y.  M.artin,  Johns.  89 ; 
Gosling  y.  Gosling,  Johns.  265  I  Magrath  v.  Morehcail,  L.  II.  12  Eq.  491;  Hilton  v. 
Hilton,  14  Eq.  468,  475;  Croxton  v.  May,  9  Ch.  1).  388  {semhle);  Nixon  v.  Cameron, 
26  Ch.  ])iv.  19;  AV  Tweedie,  27  Ch.  1).  315;  Harhin  r.  Ma.'^terman,  '94,  2  Ch.  184;  In 
re  John:<ton,  '94,  3  Ch.  204;  Miller  r.  Millur  (Courtof  Session,  1890),  18  U.  301  ;  Cuth- 
bert  (Court  of  Ses-sion,  1894),  7  Jurid.  Rev.  181,  31  Sc.  L.  Rep.  575;  Woolley  v.  Pres- 
ton, 82  Ky.  413;  Ilul.er  v.  Donoghne.  49  N.J.  Eq.  125;  Ja.sper  w.  Maxwell,  1  Dev. 
Eq.  357;  Hen<ler.-»oirs  Est.,  15  Phila.  598  Arcnrd. 

The  postponement  of  the  conveyance  to  the  son  or  other  beneficiary  may  bo  very 
easily  accomplislicil  even  in  Eiigliiiid.  The  testator  has  sim|)ly  to  cri'atc  a  trust  for  an 
inconsidcralilf!  aniount,  but  atlacliiiig  tfi  the  enliro  trust  fund  for  tlio  bonolit  i>f  anotlicr 
person,  e.  t/.,  the  trustee  himself.  The  son  cannot  then  as  a  niattor  of  absolute  right 
call  for  a  convf!yance  of  tlu;  legal  title,  becauso  he  is  not  the  solc^  rrslui  i/w  tnixl.  Ho 
must  therefore  apfteal  to  the  discretion  of  the  court,  which  would  not  ordinarily  do- 
feat,  under  such  circumstances,  tlic  invariable  ex|)Cctation8  of  the  testator.  Harbin 
v.  Ma.sterinan,  12  Eq.  559 ;  Talbot  c  .fevers,  20  E(|.  255;  Wealkw.all  c.  Tbornburgh, 
8  Ch.  1).  2fil.     See  al.so  Harbin  r.  .M.xst(!rnian,  '94,  2  Ch.  1«4. 

Where  jtnqierty  is  given  to  trustees  upon  trust  for  the  children  of  a  certain  woman, 
and  in  flefault  of  children  ujion  trust  for  another  pc^rson,  the  one  entitled  upon  default 
of  children  may  c(,mi)el  a  <'i)nvoyanco  of  tlie  property  by  tho  trustee  as  soon  ;ih  the 
woman,  not  having  cbildren,  has  become  so  oM  iluit  in  the  estimation  of  the  court  she 
must  confitiuo  childless.  Forty  v.  Re.ay,  Dart  V.  &  !'.  (5th  eil.)  345;  (Jroves  v. 
Groves.  12  W.  R.  45;  Re  Widdowa  Tni'sis,  J..  R.  II  Eq.  408;  Rr  Millner's  Estate, 
L.  R.  14  Eq,  245;  Brown  i;.  Taylor,  W .  N.  (IH72).  190;  ATaden  r.  Taylor.  45  E.  J.  Ch. 
569;  Arclier  v.  Dowsing,  \V.  N.  (1 879),  43;  Rr  Taylor,  29  W.  R.  3.50;  Croxton  >\ 
May,  9  Ch.  D.  388;  Davidson  v.  Kimpton,  18  Ch.  I).  213;  Browne  v.  Warnock,  L.  R, 
7  Ir.  3;   Mellon's  Est.  16   Philn.  323. 

But  .Mco  Towle  v.  Delano,  144  .M.-uts.  95;  Eist  v.  Rodney,  83  Pa.  483. —  Ed. 

'  Only  the  opinion  of  the  court  is  given.  —  Eo. 


456  CLAFLIN   V.   CLAFLIN.  [CIIAP.  V. 

my  son  Clarence  A.  Clallin,  one  tliird  part  of  the  proceeds  thereof,  and 
to  pay  the  remaining  one  third  part  thereof  to  my  son  Adelhert  E. 
Chitlin,  in  the  manner  following,  viz.  ten  thonsand  dollars  when  he  is 
of  the  age  of  twenty-one  years,  ten  thonsand  dollars  when  he  is  of  the 
age  of  twenty-five  years,  and  the  balance  wiien  he  is  of  the  age  of 
thirty  years." 

Apparently,  Adelbert  E.  Clafliu  was  not  quite  twenty-one  years 
old  when  his  father  died,  but  he  some  time  ago  reached  that  age  and 
received  ten  thousand  dollars  from  the  trust.  He  has  not  yet  reached 
the  age  of  twenty-five  years,  and  he  brings  this  bill  to  compel  the 
trustees  to  pay  to  hiui  the  remainder  of  the  trust  fund.  His  conten- 
tion is,  in  eflfect,  that  the  provisions  of  the  will  postponing  the  payment 
of  the  money  beyond  the  time  when  he  is  twenty-one  years  old  are 
void.  There  is  uo  doubt  that  his  interest  in  the  trust  fund  is  vested 
and  absolute,  and  that  no  other  person  has  any  interest  in  it,  and  the 
weight  of  authority  is  undisputed  that  the  provisions  postponing  pay- 
ment to  him  until  some  time  after  he  reaches  the  age  of  twenty-one 
years  would  be  treated  as  void  by  those  courts  which  hold  that  restric- 
tions against  the  alienation  of  absolute  interests  in  the  income  of  trust 
property  are  void.  There  has,  indeed,  been  no  decision  of  this 
question  in  England  by  the  House  of  Lords,  and  but  one  by  a  Lord 
Chancellor,  but  there  are  several  decisions  to  this  effect  by  Masters  of 
the  Rolls  and  by  Vice  Chancellors.  The  cases  are  collected  in  Gray's 
Restraints  on  Alienation,  §§  106-112,  and  Appendix  IL  See  Josselyn 
V.  Josselyn;^  Saunders  v.  Vautier  ;  Rocke  v.  Rocke ;  ^  In  re  Young's 
settlement ;  ^  In  re  Jacob's  will ;  *  Gosling  v.  Gosling ; "  Turnage  v. 
Greene  ;  ®  Battle  v.  Petway.' 

These  decisions  do  not  proceed  on  the  ground  that  it  was  the  inten- 
tion of  the  testator  that  the  property  should  be  conveyed  to  the  bene- 
ficiary on  his  reaching  the  age  of  twenty-one  years,  because  in  each 
case  it  was  clear  that  such  was  not  his  intention,  but  on  the  ground 
that  the  direction  to  withliold  the  possession  of  the  property  from  the 
beneficiary  after  he  reached  his  majority  -was  inconsistent  with  the 
absolute  rights  of  property  given  him  by  the  will. 

This  court  has  ordered  trust  property  to  be  conveyed  by  the  trustee 
to  the  beneficiary  when  there  was  a  dry  trust,  or  when  the  purposes  of 
the  trust  had  been  accomplished,  or  when  no  good  reason  was  shown 
why  the  trust  should  continue,  and  all  the  persons  interested  in  it  were 
sni  juris  and  desired  that  it  be  terminated  ;  but  we  have  found  no  ex- 
pression of  any  opinion  in  our  reports  that  provisions  requiring  a 
trustee  to  hold  and  manage  the  trust  property  until  the  beneficiary 
reached  an  age  beyond  that  of  twenty-one  years  are  necessarily  void  if 
tiie  interest  of  the  beneficiary  is  vested  and  absolute.  See  Smith  v. 
Harrington ;  *  Bowditch  v.  Andrew ;  ^  Russell  v.  Grinnell ;  "  Inches  v, 

^  9  Sim.  63.  2  9  Rgav.  66.  «  \8  Bear.  199. 

*  29  Beav.  ^02.  ^  h.  R.  V.  Johns.  265.  «  2  Jones  Eq.  63. 

''  5  Ired.  h'&.  ^  4  Allen,  566.  »  6  Alkn,  33'J. 
10  1 05  .Ma>:s.  425. 


SECT.  I.]  *         CLAFLIN   V.    CLAFLIN.  457 

Hill ;  ^  Sears  v.  Choate.'^  This  is  not  a  dry  trust,  and  the  purposes  of 
the  trust  have  not  been  accomplished  if  the  intention  of  the  testator  is 
to  be  carried  out. 

In  Sears  v.  Choate  it  is  said,  "  Where  property  is  given  to  certain 
persons  for  their  benefit,  and  in  such  a  manner  that  no  other  person 
has  or  can  have  any  interest  in  it,  they  are  in  effect  the  absolute 
owners  of  it,  and  it  is  reasonable  and  just  that  they  shoukl  have  the 
control  and  disposal  of  it  unless  some  good  cause  appears  to  the  con- 
trary." In  that  case  the  plaintiff  was  the  absolute  owner  of  the  whole 
property,  subject  to  an  annuity  of  ten  thousand  dollars  payable  to 
himself.  The  whole  of  the  principal  of  the  trust  fuud,  and  all  of  the 
income  not  expressl}'  made  payal^le  to  the  plaintiff,  had  become  vested 
in  him  when  he  reached  the  age  of  twenty-one  years,  by  way  of  result- 
ing trust,  as  property  undisposed  of  by  the  will.  Apparently  the 
testator  had  not  contemplated  such  a  result,  and  had  made  no  pro- 
vision for  it,  and  the  court  saw  no  reason  why  the  trust  should  not  be 
terminated,  and  the  property  conveyed  to  the  plaintiff. 

In  Inches  i\  Hill,  uhi  supra,  the  same  person  had  become  owner  of 
the  equitable  life  estate  and  of  the  equitable  remainder,  and  "  no 
reason  appearing  to  the  contrary,"  the  court  decreed  a  conveyance  by 
the  trustees  to  tlie  owner.     See  Whall  v.  Converse.* 

In  the  case  at  bar  nothing  has  happened  which  the  testator  did  not 
anticipate,  and  foi*  which  he  has  not  made  provision.  It  is  plainly 
his  will  that  neither  the  income  nor  any  part  of  the  principal  should 
now  be  paid  to  the  plaintiff.  It  is  true  that  the  plaintiff's  interest  is 
alienable  by  him,  and  can  be  taken  by  his  creditors  to  pay  his  debts, 
but  it  does  not  follow  that,  because  the  testator  has  not  imposed  all 
possi])le  restrictions,  the  restrictions  which  he  has  imposed  should  not 
be  carried  into  effect. 

Tiie  decision  in  Broadway  National  Bank  v.  Adams  rests  upon  the 
doctrine  that  a  testator  has  a  right  to  dispose  of  his  own  property  willi 
such  restrictions  and  limitations,  not  repugnant  to  law,  as  he  sees  lit, 
and  that  his  intentions  ought  to  be  carried  out  unless  they  contravene 
some  positive  rule  of  law,  or  arc  against  public  policy.  The  rulo 
contended  for  ])y  the  plaintiff  in  tliat  case  was  founded  upon  the  same 
considerations  as  that  contended  for  by  the  plaintiff  in  tiiis,  antl  tho 
grounds  on  which  this  court  declined  to  follow  the  English  rule  in  that 
case  arc  applicable  to  this,  and  for  the  reasons  there  given  we  are 
unable  to  see  that  the  directions  of  the  testator  to  the  trustees,  to  pay 
the  money  to  the  plaintiff  when  he  readies  tlie  ago  of  twenty-live  and 
thirty  years,  and  not  before,  are  against  pul)lic  policy,  or  are  so  far 
inconsistent  with  the  righte  of  property  given  to  tiie  plaintiff  that  tliry 
should  not  be  carried  into  effect.  It  cannot  be  s.-iiil  that  these  restric- 
tions upon  the  plaintiff's  poHseHsion  and  control  of  the  i)roi)orty 
arc  altogether  useless,  for  there  is  not  the  same  danger  that  he  will 
spend  the  property  wiiile  it  is  in  the  hands  of  the  trustees  as  there 
would  be  if  it  were  in  his  own. 

1  IOC  Masa.  575.  '  146  Mfwa.  .-WS.  •  146  Miwh.  345. 


453  RE    BROWNE'S    WILL.  '  [CHAP.  V. 

Tn  Sanford  r.  Laeklaiul  ^  a,  beneficiary  who  would  have  been  en- 
titled to  a  conveyance  of  trust  property  at  the  age  of  twenty-six 
became  a  baiiknii^  at  the  age  of  twenty-four,  and  it  was  held  that 
the  trustees  should  convey  his  interest  immediately  to  his  assignee,  as 
*■'  the  strict  execution  of  the  trusts  in  the  will  have  been  thus  rendered 
impossible."  But  whether  a  creditor,  or  a  grantee  of  the  plaintiff  in 
this  case  would  be  entitled  to  the  immediate  possession  of  the  property, 
or  would  only  take  the  plaintitf' s  title  sub  modo,  need  not  be  decided. 
The  existing  situation  is  one  which  the  testator  manifestly  had  in  mind 
and  made  provision  for ;  the  strict  execution  of  the  trust  has  not  be- 
come impossible;  the  restriction  upon  the  plaintiff's  possession  and 
control  is,  we  think,  one  that  the  testator  had  a  right  to  make  ;  other 
provisions  for  the  plaintiff  are  contained  in  the  will,  apparently  suf- 
ticient  for  his  support,  and  we  see  no  good  reason  why  the  intention 
of  the  testator  should  not  be  carried  out.  Russell  v.  Grinnell.'^  See 
Toner  v.  Collins  ;  *  Rhoads  v.  Rhoads  ;  *  Lent  v.  Howard  ;  ^  Barkley  v. 
Dosser ;  *  Carmichael  v.  Thompson ;  '^  Lampert  v.  Haydel.* 

Decree  affirmed.^ 


Re  BROWNE'S  WILL. 
In  Chancery,  before  Sir  John  Romillt,  M.  R.,  July  29,  1859. 

[Reported  in  27  Beavan,  324.] 

The  testator  bequeathed  to  his  three  trustees,  who  were  also  hia 
executors,  the  sum  of  £3,000  iJd  per  cent  consolidated  annuities, 
upon  trust,  to  invest  the  same  in  the  purchase  of  a  government  annu- 
ity, or  if,  fi'om  any  cause,  a  difficulty  should  arise  as  to  the  purchase 
of  a  government  annuity,  then  in  an  office  for  the  insurance  of  life,  or 
in  some  other  good  security,  to  be  payable  during  the  life  of  Louisa 
Harris;  and  to  be  held  upon  trust  to  pay  the  same  unto  Louisa  Harris 
for  her  sole  and  separate  use,  free  from  the  debts  or  control  of  any 
husband,  and  so  that  she  should  not  anticipate  the  same.  And 
he  declared  that  her  receipt  should  be  a  discharge  for  the  same,  but 
that,  in  case  of  illness  or  other  incapacity  of  Louisa  Harris  to  give 
such  receipt,  it  should  be  lawful  for  his  trustees,  in  their  discretion 
and  of  their  uncontrollable  authority,  to  dispense  with  the  same,  and 
to  manage  the  said  annuity,  and,  from  time  to  time,  to  apply  the  same 

1  2  Dillon,  6.  2  io5  Mass.  425.         8  67  Iowa,  369.  *  43  lU.  239. 

6  89  N.  Y.  169.         6  15  j^ga,  .529.  ''  .5  Cent.  Rep.  .'SOO.       ^  20  Mo.  App.  616. 

9  Avery  v.  Avery,  90  Ky.  613  (se.mbk) ;  Ru.s.sell  v.  Gririnell,  105  Mass.  425 ;  Het- 
zel  V.  Barber,  69  N.  Y.  1,12  (semhh).  Accord. 

See  also  Rhoads  v.  Rhoads,  43  111.  239. 

But  if  a  trustee  sees  fit  to  convey  to  a  cestui  que  trust  who  has  the  entire  beneficial 
interest  in  the  property,  there  is  no  one  who  has  any  standing  to  file  a  bill  against  the 
trustee  even  though  the  conveyance  defeats  the  intention  (jf  the  creator  of  the  trust, 
Lemen  v.  McComas,  63  Md.  153.     See  Brophy  v.  Lawler,  107  111.  285.  — Ed. 


SECT.  I.]  KE   PHILBKICK'S   SETTLEMENT.  459 

for  the  maintenance  and  support,  or,  otherwise,  for  the  personal  ben- 
efit of  Louisa  Harris,  during  her  life,  at  such  times  and  in  such  man- 
ner as  his  trustees  should  think  most  conducive  to  her  comfort  and 
convenience. 

Louisa  Harris,  who  was  unmarried,  being  advised  that  she  was 
entitled  to  have  the  £3,000  consols  transferred  to  her,  instead  of  the 
annuity  directed  to  be  purchased  therewith,  elected  to  have  the  sum 
of  consols  transferred  to  her  instead  of  the  annuity,  and  she  gave  the 
executors  notice,  requiring  them  to  transfer  it  to  her.  The}^  refused 
80  to  do,  and  paid  the  amount  into  coui't  under  the  Trustee  Relief 
Act. 

Louisa  Harris  now  presented  a  petition,  praying  a  declaration  that 
she  was  entitled  to  the  £3,000  consols,  and  that  it  might  be  trans- 
ferred to  her,  accordingly. 

Mr.  Selivyn  and  Mr.  Fischer  cited  Ford  v.  Batley.^ 

Mr.  liobhouse,  for  the  executors. 

The  Master  of  the  Rolls  held  that  the  petitioner  was  entitled 
to  have  the  consols  transferred  to  her.- 


Re  puilbrick'S  settlement. 

Is  Chancery,  before  Sir  John  Romilly,  M.  R.,  March  27,   18G5. 
[lieported  in  34  Law  Journal  Rejx/rls,  Chancers/,  368.] 

By  a  deed-poll,  dated  tlie  4th  of  March,  IHIG,  a  fund  was  vested  in 
trustees,  upon  trust,  for  the  separate  use  of  Haniial)  Pliilbrick,  a  mar- 
ried woman,  for  her  life,  and  after  her  death  upon  such  trusts  as  she 
should  by  will  appoint. 

By  her  will,  dated  the  20th  of  June,  1856,  and  expressed  to  l)e 
made  in  pursuance  of  the  power,  Hannah  Philbrick  appointed  the 
funrl  to  various  persons,  giving  a  life-interest  in  part  of  it  to  her 
husband,  and  appointed  two  executors.  She  died  in  .June,  18G1,  ami 
her  executors  proved  her  will. 

The  trustees  of  the  deed-poll  being  in  doubt  whether  they  ought  to 
hand  over  the  trust-fund  to  the  executors,  or  to  distribute  it  them- 

1  1 7  Beav.  303. 

2  Stokes  V.  Check,  28  Bear.  620;  fiott  v.  Nainio,  3  Ch.  D.  278  {semUc) ;  RigRS  i-. 
rearork,  22  Ch.  Div.  2h4  ;  /{>■  .MiiM.ctt,  '91,  1  f'li.  707,  712;  Fluko  r.  Fliiko,  16  N.  J. 
Eq.  478;  Morne  r.  Ilackeiisaik  Bank,  47  N.  J.  Eq.  27'.);  Iliilior  v.  I)..iiof;liii«>,  4;»  N.  J. 
¥a{.  125;  SavaRc  r.  Shornian,  24  Hiiii,  307  {nimble.];  rrentico  r.  .laiiHson,  79  N.  Y.  478; 
Armstront;  v.  McK.-lvcy,  104  N.  Y.  17'.»;  fireonland  v.  Waddell,  116  N.  Y.  234;  Mel- 
leu  V.  Mellen,  13a  N.  Y.  210;  McDonaM  r.  O'llnra,  144  N.  Y.  .')f.6  Armrd. 

See  JVarson  i'.  Lane,  17  Ves.  101 ;  P'ord  v.  Batlev,  17  Beav.  303 ;  llctzcl  v.  Barber, 
69N.  Y.  1.  — Ed. 


400  BUSK    V.   ALDxVM.  [CHAP.  V. 

solves  among  tlie  nppoiutees,  paid  the  fund  into  court  under  the  Trus- 
tee Relief  Act. 

The  executors  thereupon  presented  a  petition  for  the  payment  to 
them  of  the  fund,  to  be  admiuistered  by  them  in  accordance  with  the 
appointment  contained  in  the  will. 

j\[r.  Baggallatj,  and  Mr.  Hanhj,  for  the  petitioners. 

Mi:  CItarles  Ball,  for  the  trustees  of  the  deed-poll,  submitted  that 
they  were  the  proper  persons  to  distribute  the  fund.^ 

The  Master  of  the  Rolls  said  that  where  the  donee  of  a  general 
power  appointed  the  property  to  certain  persons  beneficially,  the 
original  trustees  were  bound  to  carry  the  appointment  into  execution; 
but  if  the  donee  appointed  the  property  to  trustees,  those  trustees  were 
entitled  to  receive  the  property  to  be  held  upon  the  trusts  declared  by 
the  donee;  and  when  a  married  woman  made  a  will  in  exercise  of  a 
power,  and  appointed  executors,  inasmuch  as  she  could  only  make  her 
will  by  virtue  of  the  power,  and  could  only  have  appointed  the  exec- 
utors for  the  purpose  of  administering  the  appointed  property,  she 
must  be  considered  to  have  appointed  the  property  to  the  executors  as 
trustees. 

The  expression  in  the  judgment  in  Piatt  v.  Routh,  that  the  executor 
could  not  have  administered  any  part  of  the  appointed  property,  only 
meant  that,  "but  for  the  will  exercising  the  power,"  the  executor 
could  not  have  administered. 

By  the  appointment  of  executors,  the  duty  of  administering  the 
fund  was,  in  his  Honor's  opinion,  taken  away  from  the  original  trus- 
tees, and  committed  to  the  executors;  and  the  provisions  of  the  23 
Vict.  c.  15,  rather  confirmed  this  view  than  otherwise.  The  fund 
must,  therefore,  be  paid  to  the  petitioners.'^ 


BUSK  V.  ALDAM. 
Ls  Chancery,  before  Sir  R.  Malins,  V.  C,  November  3,  1874. 

[Reported  in  Law  Reports,  19  Equity,  16.] 

This  was  a  demurrer.    The  statements  in  the  bill  were  as  follows :  — 
By  will,  dated  in  1839,  T.  B.  Pease,  after  giving  £5,000  to  three 

1  The  argument  for  the  trustees  is  omitted.  —  Ed. 

2  Cooper  V.  Thorut<ju,  3  Bro.  C.  C.  96,  186  ;  Angier  v.  Stannard,  3  M.  &  K.  566,  571  ; 
Wetherell  v.  Wilson,  1  Keen,  80,  86;  Poole  ;;.  Pass,  1  Beav.  600;  Hayes  v.  Oatley,  L. 
R.  14  Eq.  1  ;  Re  Hoskin's  Trusts,  5  Ch.  D.  229 ;  6  Ch.  I).  281,  8.  c.  Accord. 

In  the  last  ca.se  cited,  Sir  W.  M.  James,  L.  J.,  said,  p.  283 :  "  I  may  add  that,  if 
the  merits  had  to  be  gone  into,  I  should  hold  it  to  be  established  beyond  all  question 
that  where  &  feme  covert,  or  any  other  person  having  a  general  power  of  appointment  over 
a  fund  of  personalty,  makes  an  appointment  of  the  fund  by  will,  and  appoints  an 
executor,  the  executor,  when  he  has  proved  the  will,  is  entitled  to  receive  the  appointed 
fund."    See  also  Gluey  v.  Bakh,  154  Mass.  318.  — Ed. 


SECT.  I.]  BUSK   V.   ALDAM.  461 

trustees,  upon  trust,  to  invest  and  pay  the  income  to  bis  daughter, 
Hannah  Ford,  for  her  life,  with  power  to  her  to  appoint  the  fund  to 
her  children  "in  such  manner"  as  she  should  direct,  and  in  default  of 
appointment  to  her  children  in  equal  shares,  gave  a  sum  of  £10,000 
to  the  same  trustees  upon  like  trust  for  his  daughter,  Susanna  Busk, 
and  with  like  power  to  her  to  appoint. 

By  will,  dated  in  1868,  Susanna  Busk  appointed  the  fund  of 
£10,000  amongst  the  objects  of  the  power,  three  of  whom  were,  and 
still  are,  infants,  and  directed  that  it  should  be  paid  and  transferred 
to  the  trustees  of  her  will. 

The  present  bill  was  filed  against  the  trustees  of  the  will  of  T.  B. 
Pease  by  the  trustees  of  the  will  of  Mrs.  Busk,  to  compel  payment 
and  transfer  to  them  of  the  fund  of  £10,000.  The  defendants 
demurred. 

Davcj/,  for  the  defendants,  said  that  the  direction  to  transfer  the  fund 
to  new  trustees  was  not  authorized  by  the  words  creating  the  power, 
inasmuch  as  the  power  was  special,  not  general. 

Cookson,  for  the  plaintifts,  contended  that  the  transfer  should  be 
granted  on  the  ground  of  convenience  and  authority.^ 

Sir  R.  Malins,  V.  C,  after  stating  the  facts,  continued:  So  far 
as  the  appointment  by  Mrs.  Busk  to  trustees  is  concerned,  it  has  been 
held  by  a  long  series  of  decisions  that  it  is  a  valid  exercise  of  the 
power  of  appointment,  and  that  the  appointment  is  just  as  good  as  if 
it  had  been  made  direct  to  the  objects  of  the  pow-er.  But  this  bill  is 
filed  for  the  purpose  of  having  the  fund  transferred  from  the  trustees 
in  whose  control  it  is  now  placed  to  those  to  whom  it  is  appointed. 
For  what  object  this  is  desired  I  cannot  understand.  It  is  said  that 
it  would  be  very  convenient  to  have  the  fund  placed  in  the  hands  of 
the  new  trustees.  But  I  cannot  look  at  that.  I  must  consider  what 
was  intended  to  be  done  by  the  original  testator;  and  I  can  see  that 
such  a  transfer  as  is  asked  would  violate  his  intention.  I  asked  IVIr. 
Cookson  wh(!tlier  he  contended  that  a  mere  appoint nu'nt  of  new  trus- 
tees by  the  donee  of  the  jiower  would  have  been  valid,  and  he  piessed 
upon  me  that,  on  the  autliority  of  the  cases  cited,  the  court  was  bound 
to  hand  over  the  fund  to  the  new  trustees. 

Now  there  in,  first  of  all,  the  rase  of  Thornton  /•,  Hriglit,-  which 
simply  decides  that  an  appointment  to  a  jierson  not  an  olijecl  of  a 
power  as  trustee  for  a  perscjn  wlio  is  an  object  is  a  valid  exercise  of 
the  power;  and  there  are  also  Kenworthy  /'.  Bate,'  Trollope  v. 
Linton,*  Cowx  v.  Foster,*  and  Fowler/-.  Colin."  I'.ul  those  were  all 
cases  where  tlierc  was  real  estate  to  he  converted  and  no  i»crs(Mi 
api)ointed  to  effect  the  conversion,  and  it  was  decided  tli.it  in  that 
case  an  appointment  to  trustees  to  sell  and  convert  and  distribute  tho 

1  Tlii.s  Htatemciit  of  llio  ca.sc  is  taken  from  '2:i  W.  U.  21.  'I'lin  argnnu-nls  of  couu' 
Bcl  arc  oiiiittcrl,  —  Er>. 

'^  2  .My.  &  Cr.  230.  »  f>  Voh.  79.1.  «  1  S.  &  S.  477. 

6  1  J.'&  II.  30.  •  21  Boav.  300, 


4G2  ONSLOW   V.    VVALLIS.  [CIIAP.  V. 

proceeds  amongst  tlie  objects  of  tbo  power  was  a  valitl  execution  of 

the  power.     But  I  am  unable  to  see  how  that  can  be  an  authority  for 

taking  away  a  fund  from  trustees  who  are  lit  and  proper,  and  handing 

;  it  over  to  others  who  may  not  be  so  fit,  in  a  case  where  the  duty  of  the 

"  trustees  is  simply  to  hold  the  fund. 

I  am  asked  to  treat  these  cases  as  establishing  a  general  law,  that 
where,  in  all  cases,  a  fund  is  settled  upon  trust  for  a  mother  for  life, 
and  then  upon  trust  for  her  children  as  she  should  appoint,  and  she 
appoints  to  trustees  for  her  children,  the  first  trustees  are  bound  to 
hand  over  the  fund  to  the  trustees  appointed  by  the  daughter.  Here 
nothing  more  is  required  than  that  some  one  should  hold  the  fund,  and 
it  is  suggested  that  I  am  bound  to  hand  it  over  to  the  second  trustees. 

Mr.  Cookson  says  that  I  decided  the  point  in  Ferrier  v.  Jay.'  But 
what  I  there  decided  was,  that  where  there  was  a  general  and  a  special 
power,  and  an  appointment  was  made  of  both  funds  together  to  trus- 
tees in  trust  to  pay  debts  and  to  apply  the  residue  for  the  objects  of 
the  special  power,  the  appointment  must  be  read  reddendo  singula 
singulis,  and  the  fund  coming  under  the  general  power  applied  in  the 
first  instance  to  the  purposes  to  which  the  fund  subject  to  the  special 
power  was  not  applicable.  I  agreed  with  the  decision  in  Cowx  t\ 
Foster,^  that  the  circumstance  of  directing  debts  to  be  paid  only 
meant  that  they  were  to  be  paid  out  of  the  particular  portion  of  the 
mixed  fund  which  could  be  so  applied. 

I  did  also,  in  that  case,  undoubtedly,  say  that  the  second  trustees 
were  the  most  fit  persons  to  have  charge  of  the  fund ;  but  I  did  not 
say  that  where  it  was  a  mere  question  which  of  two  sets  of  trustees 
should  hold  a  particular  fund,  the  court  would,  necessarily,  hand  it 
over  to  the  second  set  in  point  of  date. 

The  demurrer  will  he  allowed.^ 


ONSLOW  V.   WALLIS. 
In  Chancery,  before  Lord  Cottenham,  C.  ,  November  21,  22,  1849. 

[Reported  in  1  Hall  and  Twelt,  513.^  ] 

By  indentures  of  lease  and  release,  dated  in  July,  1837,  A.  L.  Sarel 
conveyed  the  lands  in  controversy  to  Wallis,  in  fee  simple  upon  trust, 
however,  for  Louisa  Sarel.  Louisa  Sarel  died  in  1847.  She  devised 
all  her  lands  to  the  plaintiffs  in  fee  simple,  upon  trust  Ho  convert  the 
same  into  money  and  to  stand  possessed  of  the  money  upon  trust,  in 

1  L.  R.  10  Eq.  ."iSO.  2  i  J.  &  II.  30. 

8  In  re  Tyssen,  '94,  1  Ch.  56  Accord. 

See  Scott  v.  Loner,  25  Ch.  D.  535,  545,  per  North,  J.,  and  s.  c.  31  Ch.  Div.  380, 
886,  per  Cotton,  L.  J.  —  Ed. 

*  1  MacN.  &  G.  506;  8.  c.  —  Ed. 


SECT.  I.]  ONSLOW  V.   WALLIS.  463 

the  first  place,  to  pay  thereout  her  debts,  funeral,  and  testamentary  ex- 
penses, and  legacies ;  and  then  to  pay  the  legacies  given  by  her  iu  a 
certain  memorandum,  signed  b}'  her,  and  marked  with  the  letter  A. 

The  memorandum  marked  with  the  letter  A.  had  not  been  found. 

It  was  alleged  by  the  bill,  and  admitted  by  the  answer,  that  there 
were  debts  of  the  testatrix  which  her  personal  estate  was  not  sutficient 
to  pay.  The  trustees  under  the  will  applied  to  the  defendant  to  con- 
vey the  hereditaments  to  them  as  such  trustees;  but  he  insisted  that 
he  was  entitled  to  hold  them  for  his  own  benefit,  subject  to  the  pay- 
ment of  such  portion  of  the  charges  created  by  the  will  as  were  prop- 
erly chargeable  thereon,  and  which  he  offered  to  pay. 

The  bill  prayed  that  the  defendant  might  be  decreed  to  convey  and 
assure  to  them,  as  such  devisees  as  aforesaid,  the  hereditaments 
comprised  in  the  deeds  of  July,  1837.^ 

The  cause  was  heard  by  the  Vice-Chancellor  of  England,  on  the 
16th  Januai'y,  1849,  when  he  ordered  a  conveyance  to  be  executed 
by  the  defendant,  according  to  the  prayer  of  the  bill.- 

The  defendant  now  appealed  from  that  decision. 

Mr.  Humphry,  and  Mr.  Bird,  for  the  plaintiffs. 

Mr.  Rolt  and  Mr.  Prior,  contra. 

The  Lord  Chancellor.  No  case  similar  to  this  has  been  cited, 
where  the  owner  of  property  which  was  on  trust  has  given  it  to  some- 
body else ;  and  whether  it  was  so  given  beneficially  or  not,  is  a  ques- 
tion which  the  defendant  has  no  right  to  inquire  into.  It  is  not  like 
the  case  of  Burgess  v.  "NVheate.  The  only  reason  why  the  trustee, 
under  such  circumstances  as  existed  iu  that  case,  is  allowed  to  hold 
property,  is  because  there  is  nobody  to  take  it  from  him;  it  does  not 
belong  to  any  person  whom  the  law  recognizes  as  having  the  right  to 
ask  for  the  execution  of  the  trust.  Now  here  the  original  owner, 
undoubtedly,  had  a  right,  as  against  the  trustee,  to  direct  what  he 
should  do  with  the  property;  he  was  a  mere  naked  trustee.  The  tes- 
tatrix, in  tills  case,  had  a  right  to  do  what  slie  pleased  with  the  bene- 
ficial interest,  and  she  did  l)y  her  will  direct  tiie  legal  estate  to  be 
conveyed,  or,  at  least,  gave  the  property,  to  the  trustees  of  lier  will. 
The  question  is,  whether  the  defendant,  who  appears  to  be  liie  trustee 
of  the  legal  estate,  has  any  right  to  incjuire  for  what  piir|)()se  these 
l>arties  arc  to  hold  the  trust  property.  It  is  a  gift,  in  trust,  it  is 
true;  but  it  is  the  ai)pointinent  of  persons  who  are  to  stand  in  the 
place  of  the  original  owner,  as  against  the  trustee.  Tlii'ii  \\\\y  is  the 
beneficial  interest  which  is,  by  the  operation  of  Ibe  rule  of  law,  in 
Burgess  '•.  Wheatc,  to  enure  to  the  benefit  of  trustees,  to  enure  to  the 
benefit  of  this  trustee?  There  is  no  want  of  persons  authorized, 
as  against  him,  to  require  a  transfer  of  the  beneficial  interest.  Sup- 
pose the  testatrix  had  simply  directed  that  the  estate  should  he  trans- 

'  Tho  statement  of  the  ca»o  is  abridgcJ,  and  tlio  arginnouts  of  counsel  are 
omitted.  —  En. 

2  16  Sim.  483.  — Kn. 


464  ONSLOW   V.   WALLIS.  [CIIAI'.  V. 

feiTod,  and  had  appointed  now  trustees,  and  directed  the  existing 
trustee  to  convey  to  those  who  are  trustees  under  the  will,  could  the 
trustee  of  the  legal  estate  dispute  the  title  of  the  trustees  under  the 
will,  because  they  might  or  might  not  have  the  means  of  carrying  into 
effect  the  trusts  of  the  will  ? 

The  real  question  is,  whether  it  is  regulated  by  the  doctrine  in  Bur- 
gess V.  Wheate.  I  think  that  it  is  not  regulated  by  the  doctrine  in 
Burgess  v.  "Wheate  at  all,  because  that  case  proceeds  on  the  fact  of 
ther^  being  no  persons  having  a  right  to  control  the  legal  estate,  and 
here  there  are  persons  authorized  to  control  the  legal  estate. 

I  do  not  take  exactly  the  view  which  the  Vice-Chancellor  seems  to 
have  done,  because  he  seems  to  have  considered  that  the  matter  would 
depend  on  the  presumed  intention  of  the  testatrix.  For  that  purpose, 
you  are  to  assume  she  intended  that  the  paper  A.  should  not  be  pro- 
duced, and  therefore  there  would  be  a  failure  of  her  declared  inten- 
tion. Therefore,  if  there  is  any  trustee  who  is  to  have  the  benefit  of 
the  doctrine  in  Burgess  v.  Wheate,  the  trustees  under  the  will  are  to 
have  it.  It  cannot  be  considered  that  the  testatrix  had  any  such 
view  at  all.  It  must  be  presumed,  she  intended  that  the  purposes 
declared  by  her  will  should  be  carried  into  effect.  Those  purposes 
have  failed,  in  consequence  of  that  paper  A.  not  being  produced ;  it 
may  be  produced  hereafter,  or  it  may  not.  I  do  not  proceed  on  that 
ground,  but  I  proceed  on  this,  —  that  there  are  persons  appointed  by 
the  owner  of  the  property,  to  whom  the  property  is  to  be  conveyed. 
They  are  the  only  parties  having  a  right  to  it;  whether  or  not  they 
have  power  afterwards  to  dispose  of  all  the  beneficial  interest,  is  a 
matter  with  which  the  defendant  "Wallis,  as  mere  owner  of  the  legal 
estate,  has  nothing  whatever  to  do. 

This  seems  to  me  to  be  a  case  which  does  not  fall  within  the  doc- 
trine of  Burgess  v.  Wheate,  so  far  as  the  defendant,  Wallis,  is  con- 
cerned; and,  therefore,  the  direction  of  the  Vice-Chancellor  for  a 
conveyance,  under  the  terms  of  the  will,  is,  I  think,  a  proper  decree, 
and  it  must  be  affirmed,  with  costs.  ^ 

1  Compare  Re  Lashmar,  '91,  1  Ch.  258. 

If  X.  is  a  trustee  for  A.,  and  A.  assigns  his  equital)le  interest  to  B.  in  trust  for  C, 
B.  is  entitled  to  demand  a  conveyance  of  the  legal  estate  from  X.,  and  C.  is  not  a 
necessary  party  to  the  bill.     Angier  v.  Stannard,  3  M.  &  K.  566.  —  Ed. 


SECT.  IL]  TIDD   V.   LISTER.  465 


SECTION  II. 
The  Duty  to  put  Cestui  que  Trust  in  possession  of  the  Trust-res. 

TIDD    V.  LISTER  and  Others. 
In  Chancery,  before  Sir  John  Leach,  V.  C,  November  20,  1820. 

[Reported  in  5  Maddock,  429.] 

The  Vice-Chancellor.^  The  testator  in  this  case,  after  giving  to 
his  wife  and  daughter  the  personal  occupation  of  the  house  in  which 
he  resided,  and  the  use  of  his  furniture,  has  devised  and  bequeathed  ' 
his  whole  real  and  personal  property  to  certain  trustees  upon  trust,  in 
the  first  place,  to  pay  his  funeral  expenses,  and  debts,  then  to  keep 
the  buildings  upon  his  estate,  consisting  of  freehold,  copyhold,  and 
leasehold,  insured  against  loss  or  damage  hy  fire;  next,  to  pay  the 
premiums  of  certain  policies  of  assurance  on  the  lives  of  his  two 
sons,  which  are  to  form  a  provision  for  their  widows  and  children ; 
then  to  pay  annuities  of  sixty  guineas  each  to  his  two  sons;  and, 
lastly,  he  has  given  the  surplus  income  between  his  wife  and  daughter 
during  their  joint  lives,  and  the  whole  surplus  income  to  the  survivor 
for  life;  and  in  case  his  two  sons  should  survive  his  wife  and  daugh- 
ter, then  he  gives  to  them  his  whole  real  and  personal  estate.  Soon 
after  the  death  of  the  testator,  a  bill  was  filed  in  this  court  for  the 
execution  of  the  trusts  of  his  will,  and  in  the  progress  of  that  suit  the 
debts  and  funeral  expenses  were  paid  out  of  the  personal  estate,  and 
the  residue  of  the  personal  estate  was  secured  in  the  name  of  the 
Accountant-General,  and  is  of  an  amount  sudlcient  to  satisfy  the 
two  annuities  of  sixty  guineas  each,  given  to  tiie  sons,  who  do, 
accordingly,  receive  tlie  same  from  the  Accountant-Clenoral.  The 
premiums  of  the  policies  of  assurance  continue  to  l)e  paid  out  of  the 
rents  and  profits  of  the  estates.  The  mother  died  in  the  year  1H1'.>, 
and  the  daughter,  who  is  become  entitled  fo  the  whole  surplus  income 
of  the  real  and  personal  estate,  has  married.  The  mother,  the  two 
sons,  and  two  other  ]»ersons  wore  the  trustees  named  in  the  will;  one 
of  these  j)ersons  is  dead,  the  other  lias  but  little  interfered  in  the  trusts 
of  the  will,  one  of  the  sons  is  abroad,  and  the  management  of  the 
property  has  principally  devolved  iii)on  the  son,  William  Lister. 
The  f)resent  bill  is  filed  by  the  dauglit((r  and  her  husband,  i)raying  a 
conveyance,  surrender,  and  assignment  of  the  legal  estate  from  the 
trustees,  and  that  tlie  plaintilTs  may  be  let  into  possession,  or  that  a 
receiver  may  be  appointed.     The  prayer  for  the  conveyance,  surrcn- 

^  Uulj  the  opiuiou  of  tlio  court  ix  given.  —  En. 
30 


466  TIDD   V.   LISIUK.  [CUAI'.  V. 

der,  and  assignment  was  abandoned  at  the  bar,  but  it  was  insisted 
that  it  is  a  matter  of  course  in  a  court  of  equity,  to  divest  a  trustee  of 
the  management  of  the  trust  pruperty,  and  to  deliver  the  possession 
to  the  cestui  ijue  trust  for  life.  And  that  the  only  dillicully  here  was, 
that  the  trustees  are  in  the  first  place  directed  to  pay  certain  pre- 
miums upon  policies  of  assurance,  which  remained  to  be  provided  for 
out  of  the  rents  and  profits  of  the  estates,  and  that  to  remove  this 
dillieulty  the  daughter's  husband  was  willing  to  invest  in  the  cause  a 
sum  sulficieut  to  answer  the  amount  of  those  annual  payments;  and 
the  case  of  Blake  v.  Bunbury  ^  was  cited  as  an  authority  for  this 
doctrine. 

My  first  impressions  were  strongly  against  the  existence  of  any 
such  rule.  It  is  perfectly  plain  from  the  continuing  nature  of  this 
trust  that  the  testator  intended  that  the  actual  possession  of  the  trust 
property  should  remain  with  the  trustees ;  and  it  did  appear  to  me  a 
singular  proposition  that  if  a  testator  who  gives,  in  the  first  instance, 
a  beneficial  interest  for  life  only,  thinks  fit  to  place  the  direction  of 
the  property  in  other  hands,  which  is  an  obvious  means  of  securing 
the  provident  management  of  that  property  for  the  advantage  of  those 
who  are  to  take  in  succession,  that  it  should  be  a  principle  in  a  court 
of  equity  to  disappoint  that  intention,  and  to  deliver  over  the  estate  to 
the  cestui  que  trust  for  life,  unprotected  against  that  bias  which  he 
must  naturally  have  to  prefer  his  own  immediate  interest  to  the  fair 
rights  of  those  who  are  to  take  in  remainder.  Independently  of  the 
purpose  of  management  of  the  property,  a  testator  may  be  considered 
in  the  ease  of  a  female  cestui  que  trust  for  life,  as  having  a  further 
view  to  her  personal  protection  in  the  case  of  her  marriage. 

The  husband  can  only  compel  the  trustee  to  account  to  him  for  the 
wife's  income  by  the  aid  of  a  court  of  equity;  and  this  court,  in  cer- 
tain cases  of  misconduct  by  the  husband,  will  not  compel  the  trustee 
to  account  to  the  husband,  but  will  secure  the  income  for  the  benefit 
of  the  wife.  It  is  manifest  that  this  protection  would,  to  some  extent, 
be  prejudiced,  if  the  husband  were  put  into  the  possession  of  the  trust 
estate. 

The  case  of  Blake  v.  Bunbury  is  no  authority  for  the  proposition 
for  which  it  was  cited.  It  was  not  the  case  of  a  cestui  que  trust  for 
life,  but  the  case  of  a  legal  tenant  for  life,  subject  to  a  term  for  rais- 
ing a  charge.  There  was  there  no  purpose  but  to  raise  the  charge, 
and  the  legal  tenant  for  life,  securing  the  charge,  had,  upon  every 
principle,  a  right  to  the  possession.  There  may  be  cases  in  which  it 
may  be  plain  from  the  expressions  in  the  will  that  the  testator  did  not 
intend  that  the  property  should  remain  under  the  personal  manage- 
ment of  the  trustees.  There  may  be  cases  in  which  it  may  be  plain 
from  the  nature  of  the  property  that  the  testator  coJild  not  mean  to 
exclude  the  cestui  que  trust  for  life  from  the  personal  possession  of 

1  1  Yes.  Jr.  194 ;  1  Ves.  Jr.  514 ;  4  Bro.  C.  C.  21,  8.  c. 


SECT.  II.]  TIDD   V.   LISTER.  467 

the  property,  as  in  the  ease  of  a  family  residence.^  There  may  be  very 
special  cases  in  which  this  court  would  deliver  the  possession  of  the 
property  to  the  cestui  que  trust  for  life,  although  the  testator's  iuteu- 
tion  appeared  to  be  that  it  should  remain  with  the  trustees,  as  where 
the  personal  occupation  of  the  trust  property  was  beneficial  to  the 
cestui  que  trust,  there  the  court  taking  means  to  secure  the  due  protec- 
tion of  the  property  for  the  benefit  of  those  in  remainder,  would,  in 
substance,  be  performing  the  trust  according  to  the  intention  of  the 
testator.  The  present  case  is  not  one  of  special  circumstances.  It  is 
not  the  personal  occupation,  but  the  management  of  the  property  that 
is  sought  by  this  bill. 

The  cestui  que  trust  for  life  is  a,  feme  covert.  Two  of  the  trustees 
are  the  persons  who,  if  they  survive  the  wife,  will  be  entitled  to  this 
property.  The  testator  has  thought  fit  to  place  his  property  in  their 
hands,  and  out  of  the  management  of  the  cestui  que  trust  for  life,  and 
I  have  no  authority  to  revoke  his  will. 

There  is,  however,  in  this  bill  a  prayer  for  a  receiver,  and  allega- 
tions of  misconduct  to  support  that  prayer.  These  allegations  are 
denied  by  the  answer,  and  not  proved.  But  I  find  in  the  answer  that 
the  acting  trustee,  William  Lister,  expresses  himself  to  l)e  willing 
that  a  receiver  should  be  appointed.  If  the  plaintiffs  desire  a  receiver, 
they  are  entitled  to  it  upon  this  consent  of  the  trustee. - 

1  Baylies  v.  J5aylics,  1  Cull.  .537  ;  Powys  v.  Blagrave,  Kay,  495,  4  D.  M.  &  G.  448  ; 
Williamson  v.  Wiikius,  14  Ga.  416,  422  ;  Wade  v.  Powell,  20  G.i.  G45. 

See  also  Kaj  v.  Powel,  1  Vcs.  Jr.  408 ;  Denton  v.  Denton,  7  Beav.  388 ;  Honier  v. 
Wheelwright,  2  Jur.  X.  S.  367;  IIoMkins  >:  Cainjibell,  W.  N.  (1869),  ^9;  Etchella  v. 
Williamson,  W.  N.  (1869),  61  ;  Young  r.  Miles,  10  B.  Mon.  287.  —  En. 

2  See  to  the  same  effect  Pugh  v.  Vaughan,  12  Beav.  517;  Taylor  v.  Taylor,  20 
Eq.  297,3  Ch.  D.  145;  Davis  v.  Hunter,  23  Ga.  172;  Cux  i-.  Williams,  5  Jones,  Kq. 
150;  VVeckham  v.  Berry,  55  I'a.  70. 

The  effect  of  Tidd  v.  Lister  ha.s  been  greatly  modified  in  England  hy  the  Settled 
Land  Acts,  as  aj)j)ears  from  the  fidlowing  extract  from  tlio  opinion  of  Kokowich,  J.,  in 
West  V.  Wytlifs,  '93,  2  Ch.  369,  374  :  "  My  conclusicm  is  tli.it  the  uld  autlinritios,  <>f 
which  Tidd  v.  Lister  may  be  taken  to  be  the  typo,  and  which  were  snmniari/cd  by  the 
late  Master  of  the  Kolls  in  Taylor  v.  Taylor,  20  Etj.  297,  may  be  treated  jis  largely,  if 
not  altogether,  nbrogatf-r!  by  the  Acts  just  mentioned.  I  must  not  be  understood  as 
saving  that  even  now  an  equitjible  ten:uit  for  life,  where  the  trustees  in  whom  the  legal 
estate  is  vested  have  duties  of  management  and  the  like  to  perform,  is  entitled,  a.s  a 
matter  of  course,  to  be  let  into  j)osses8ion  ;  but  I  intend  to  hold  that  the  powers  granted 
to  and  the  duties  imjioscd  on  a  tenant  for  life,  ns  defined  by  the  Sittird  l,<tn<l  .\rt^,  havo 
rai.scd  a  j)r<!Humption  in  f.ivor  of  the  title  to  possession  which  did  not  before  exist, 
and  have  ma<lo  it  incumbent  on  the  Court  to  provide  that,  if  the  estate  and  the  trustees 
can  be  adc<]uatr!ly  prote<'ted  by  rcasonablo  safeguards,  an  c(|uit:ible  t(*nant  for  life  shall 
be  let  into  possexaion  and  be  enablcfj  personnlly  to  exercise  these  powers  and  discharge 
these  duties  unless  there  be  found  some  reason  to  the  contrary  far  inoni  urgent  than  is 
di.sclosed  by  any  of  the  terms  of  this  will."  See  also  In  rr  Bcntley,  .'14  I*.  J.  Ch.  782; 
In  re  Bagot,  '94,  1  Ch.  177  ;  In  rr  Newen,  '94,  2  Ch.  297. 

Under  the  same  Acts,  Kekewich,  J.,  following  In  rr  Burnaby,  42  Ch.  D.  021,  decided 
that  the  ef|uitable  tenant  for  life  was  entitled  to  the  custody  «if  the  title-deeds. 

In  Williamson  v.  Wilkins,  14  Ga.  416,  nn  equitable  life  tenant  of  certain  stocks  wa« 
allowed  to  maintain  a  bill  to  compel  the  tnistee  to  execute  a  power  of  attorney  in  favor 
of  the  crxlni  que  trust,  so  that  he  might  collect  the  dividends  himself,  and  thereby  savo 
the  commission  to  which  otherwise  the  trustee  would  be  entitled.  —  Eu. 


•168  IN   RE   TILLOTT.  [CHAP.  V, 

SECTION  III. 

The  Duty  to  give  Information  in  regard  to  the  Trust  Estate. 

In  re  TILLOTT.     LEE  v.   WILSON. 
In  Chancery,  before  Sir  J.  W.  Chitty,  J.,  November  13,  1891. 

{Reported  in  Law  Reports  (1892),  1  Chancery,  86.] 

The  plaintiff,  being  one  of  several  cestuis  que  (rustent,  commenced 
this  action  by  originating  summons,  and  asked  by  his  summons  that 
the  defendant,  as  trustee  of  the  testator's  will,  might  be  directed  to 
sign  and  deliver  to  the  plaintiff  an  authority  enabling  the  plaintiff,  his 
solicitor  and  agents,  to  ascertain  the  amount  of  consols  standing  in 
the  name  of  the  defendant,  and  what  stop  orders  and  distringases  (if 
any)  had  been  placed  thereon,  and  to  produce  all  deeds,  papers,  and 
documents  in  his  possession  relating  to  the  property  held  by  the 
defendant  as  trustee  of  the  will,  and  to  furnish  the  plaintiff  with  a 
general  account  of  the  residuary  estate. 

By  an  order  made  in  chambers  dated  the  3d  of  August,  1891,  it 
was  ordered  that  the  defendant  should  forthwith  write  a  letter  to  the 
Bank  of  England  authorizing  the  bank  to  inform  the  plaintiff  as  to  the 
amount  of  consols  standing  in  the  name  of  the  defendant,  or  to  verify 
the  same  by  affidavit,  and  to  produce  for  the  inspection  of  the  plaintiff 
all  deeds  and  documents  relating  to  property  in  which  the  plaintiff  was 
interested  under  the  will  of  the  testator.  The  defendant  accordingly 
wrote  the  letter  to  the  bank,  as  directed  by  order. 

This  was  a  motion  by  the  plaintiff  that  the  above  order  might  be 
discharged  or  varied,  and  that  the  defendant'  might  be  directed  to 
sign  and  deliver  to  the  plaintiff,  an  authority  to  the  bank,  enabling  the 
plaintiff  to  ascertain  what  stops,  notices,  or  distrinfjases  had  been 
placed  on  the  consols  standing  in  the  name  of  the  defendant.^ 

Chitty,  J.  In  pursuance  of  an  order  made  in  chambers  the  defend- 
ant has  written  a  letter  to  the  bank,  on  the  authority  of  which  the 
bank  has  given  to  the  plaintiff  information  which  shows  that  a  sum  of 
stock  is  actually  standing  in  the  name  of  the  trustee.  The  plaintiff, 
however,  requires  something  more ;  he  asks  for  an  authority  which  will 
enable  him  to  obtain  information  from  the  bank  as  to  whether  there  are 
any  stop  orders  on  the  fund  ;  his  object  in  asking  for  this  information 
is  to  deal  with  his  own  share  in  the  trust  estate,  his  share  being  one- 
twelfth,  to  which  he  is  entitled  contingently  on  the  death  of  his  mother. 
It  is  no  part  of  the  duty  of  a  trustee  to  assist  his  cestui  que  trust  in 
mortgaging,  or,  as  Lord  Justice  Lindley  added,  "in  squandering  or 
anticipating  his  fortune,"  Low  v.  Bouverie  %  but  a  trustee  is  bound 

1  The  statement  is  abridged  and  arguments  are  omitted,  —  Ed. 

2  [1891]  3  Ch.  82,  99. 


SECT.  III.]  IN  KE   TILLOTT.  469 

to  give  his  cestui  que  trust  proper  information  as  to  the  investment  of 
the  trust  estate,  and  where  the  trust  estate  is  invested  on  mortgage, 
it  is  not  sufficient  for  the  trustee  merely  to  say,  "I  have  invested  the 
trust  money  on  a  mortgage,"  but  he  must  produce  the  mortgage  deeds, 
so  that  the  cestui  que  trust  may  thereb}'  ascertain  that  the  trustee's 
statement  is  correct,  and  that  the  trust  estate  is  so  invested.  The 
general  rule,  then,  is  what  I  have  stated,  that  the  trustee  must  give 
information  to  his  cesttci  que  trust  as  to  the  investment  of  the  trust 
estate.  Where  a  portion  of  the  trust  estate  is  invested  in  consols,  it 
is  not  sufficient  for  the  trustee  merely  to  say  that  it  is  so  invested,  but 
his  cestiii  que  trust  is  entitled  to  an  authority  from  the  trustee  to  enable 
him  to  make  proper  application  to  the  bank,  as  has  been  done  in  this 
case,  in  order  that  he  may  verify  the  trustee's  own  statement ;  there 
may  be  stock  standing  in  the  name  of  a  person  who  admits  he  is 
a  trustee  of  it,  which  at  the  same  time  is  incumbered,  some  other 
person  having  a  paramount  title  may  have  obtained  a  charging  order 
on  the  stock  or  placed  a  distrinrjas  upon  it. 

The  question  here  is  whether  the  cestui  qtie  trust  is  not  entitled,  in 
addition  to  the  information  that  he  has  obtained,  to  tlio  further 
authority  to  the  bank  for  information  which  will,  besides  verifying 
the  trustee's  statement,  that  the  trust  money  is  invested  in  the  stock, 
also  enable  him  to  ascertain  that  the  stock  is  free  from  incumbrance 
or  free  from  any  paramount  claim.  In  the  case  before  me  there  is  no 
suggestion  that  the  trustee  is  wrong,  there  is  no  charge  of  any  sort 
made  against  liim,  though  Mr.  "Wheeler  tried  to  suggest  a  possible  case, 
and  did  suggest  that  there  might  be  some  kind  of  parauiuuiit  claim 
affecting  the  stock  in  question,  yet  tliere  is  no  suggestion  to  be  found 
on  the  evidence  in  the  case ;  but  still,  I  think,  now  Hint  the  matter  has 
been  brought  before  me  and  discussed,  that  the  cestui  que  trust  is 
entitled  to  the  further  information  that  he  now  asks  for,  which  will 
enable  him  to  go  back  witli  an  autliority  from  the  trustee,  on  which 
the  bank  will  shew  that  the  fund  is  either  clear  of  all  (h'striii;/ase/t  and 
the  like  or  that  it  is  not.  I  quite  agree  with  what  fell  from  counsel  for 
the  defendant  that  this  may  give  ti)c  plaintiff  more  inforinalion  than 
he  is  entitled  to  ask,  because,  as  there  are  twelve  shares  in  thin  fund, 
it  may  be  that  there  are  several  disfrlnydses  on  the  fund  oI)t:iin('d  by 
persons  who  have  charges  on  the  contingent  interest  of  the  other 
persons,  and  it  is  clear  that  the  trustee  is  not  bound  to  give  tlie  cestui 
que  trtist  of  one  share  any  informatif)n  as  to  the  d(>alings  of  (he  otlier 
cestui  que  trust  in  whose  share  he  has  no  inlcrost,  HJiowiiig  whether 
those  shares  are  or  are  not  iiuMiinbranced.  I  tiiink,  then,  for  these 
reasons,  that  there  ought  to  be  a  fiu'ther  order  in  the  terms  tho 
plaintifTasks  for,  but  the  plaintiff  must  pay  th(!  costs  of  the  motion.' 

1  Low  V.  Bouvcrio,  '91,  3  Ch.  82,  99,  per  Limlloy,  L.  J.;  Siiwyor  v.  GocM.ini,  95,  1 
Ch.  474  Accord. 

A  tniHtco  iH  rpf;ii!arly  Ijound  to  prodiir*'  for  tlie  iiiH|iortiim  nf  llic  rrxtiti  que  truxt  nil 
deeds  and  documents  in  his  poisession  rel.itiiig  to  tho  trust  cjrtatc     Clark  v.  Ormonde, 


470 


IN   RE   TILLOTT. 


[CIIAP.  V. 


Jao.  108,  120;  Gough  v.  Offloy,  5  Do  G.  &  Sin.,  253;  l^iigden  v.  Tvlcc,  21  Bcav.  545; 
Smith  r.  Barnes,  L.  R.  1  Eq.  65;  Simpson  i*.  Batliurst,  5  Ch.  193,  202  ;  In  re  Cowin, 
33  Ch.  D.  179. 

Ill  like  manner  a  trustee  must  produce  opinions  of  counsel  procured  hy  him  to  guitie 
him  in  the  due  administration  of  the  trust.  Dovaynes  v.  Robinson,  20  Beav.  42 ;  Wynne 
V.  Ilnmherston,  27  Beav.  42;  Talliot  v.  Mar.^hficld,  2  Dr.  &  Sm.  549;  7?e  Mason,  22 
Cii.  1).  609.  But  opinions  procured  by  a  trustee  with  a  view  to  defending  himself 
against  legal  proceeding  by  the  cestui  que  trust  are  privileged.  Brown  v.  Oakshott, 
12  Beav.  252 ;  Talbot  v.  Marshfield,  2  Dr.  &  Sm.  549  ;  unless  the  trustee  and  the  coun- 
sel are  combining  fraudulently  or  unfairly  against  the  cestui  que  trust.  Follett  v.  Jef- 
fervs,  1  Sim.  n.  s.  3;  Russell  v.  Jackson,  9  Hare,  387;  Re  Postlethwaite,  35  Ch. 
D.'722. 

In  Wynne  v.  Ilumberston,  supra,  Sir  John  Romilly,  M.  R.,  said,  p.  423  :  "  There  can 
be  no  question  that  the  rule  is,  that  where  the  relation  of  trustee  and  cestui  que  trust 
is  established,  all  cases  submitted  and  opinions  taken  by  the  trustee  to  guide  himself 
in  the  administration  of  his  trust,  and  not  for  the  purpose  of  his  own  defence  in  any 
litigation  against  liimself,  must  be  produced  to  the  cestui  que  trust.  They  are  taken  for 
the  purpose  of  administration  of  the  trust,  and  for  the  benefit  of  the  persons  entitled 
to  the  trust  estate,  who  will  have  to  pay  the  expense  thereby  incurred." 

Accounts.  —  A  trustee  is  bound  to  keep  clear  and  accurate  acc(junts  of  the  trust 
property  and  to  produce  them  for  the  inspection  of  the  cestui  que  trust.  White  v.  Lin- 
coln, 8  Ves.  363  ;  Freeman  v.  Fairlie,  3  Mer.  24,  43 ;  Anon.  4  Mad.  273 ;  Pearse  v. 
Green,  1  Jac.  &  W.  135,  140;  Clarke  v.  Ormonde,  Jac.  108,  120;  Turner  v.  Corney, 
5  Beav.  515;  Gray  v.  Haig,  20  Beav.  219;  Springett  v.  Dashwood,  2  Giff.  521 ;  Kemp 
V.  Burn,  4  Giff.  348;  Wroe  v.  Seed,  4  Giff.  425;  Lewin,  Trusts,  (9th  Ed.)  1109; 
Green  v.  Brooks,  81  Cal.  328;  Waterman  v.  Alden,  144  111.  90;  Loud  v.  Winchester, 
52  Mich.  174 ;  Blauvelt  v.  Ackerman,  23  N.  J.  Eq.,  495 ;  Elmer  v.  Loper,  25  N.  J.  Eq. 
475,  482 ;  In  re  Gaston,  35  N.  J.  Eq.  60,  348 ;  Martin  v.  Wilbourne,  66  N.  Ca.  321 ; 
Walker  v.  Sharpe,  71  N.  Ca.,  257  ;  Libbett  v.  Maultsby,  71  N.  Ca.  345  ;  Hartraan's  Ap., 
90  Pa.  203 ;  Dugan's  Est.,    17  Phila.  454 ;  Booth  v.  Siueath,  2  Strob.  Eq.  31. 

See  further,  Walker  v.  Symonds,  3  Sw.  38  ;  Ottley  v.  Gibby,  8  Beav.  602 ;  Newton 
V.  Askey,  11  Beav.  145,  152;  Burrows  v.  Walls,  5  D.  M.  &  G.  233,  253 ;  Sloo  v.  Law, 
3BlatcM.  459.— Ed. 


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SECT.  IV.]  HOLMES   V.   DKING.  471 


SECTION  IV. 

I7ie  Duty  as  to  Investment  of  Trust  Funds. 

HOLMES  V.  DRING. 
In  Chancery,  before  Sir  L.  Kenyon,  M.  R.,  April  14,  1788. 

[Reported  in  2   Cox,  Equity  Cases,  1.] 

The  plaintiff  (an  infant)  was  entitled  to  a  sum  of  £300  under  a  will, 
which  the  two  defendants,  the  executors,  residing  in  the  country,  lent 
on  private  security  of  a  bond  in  which  a  surety  joined,  and  which  was 
made  to  both  the  executors.  The  obligors  were  in  very  ample  circum- 
stances at  the  time  the  money  was  lent,  but  afterwards  becoming 
insolvent,  the  plaintiff  now  charged  the  executors  with  the  money. 

Madocks  and  Mitfonl  for  the  executors  argued,  that  persons  in  the 
country  could  not  so  readily,  invest  money  in  the  public  funds  as  those 
who  resided  on  the  spot,  and  that  if  they  lent  so  small  a  sum  as  this 
upon  such  security  as  might  reasonably  be  considered  at  the  time  as 
ample  and  unquestionable,  and  such  as  a  prudent  man  would  lend  his 
own  money  upon,  it  would  be  a  Iiard  measure  to  charge  them  with  any 
loss  that  might  hapj)en  by  the  unexpected  failure  of  such  security. 
And  Madocks  mentioned  a  case  in  (iilb.  Rep.  10,  to  shew  that  the 
Court  considered  an  executor  as  justifiable  in  lending  trust  money  on 
private  security,  if  he  took  the  security  of  more  than  one  solvent 
person. 

Ma.ster  of  the  Rolls.  As  to  the  case  in  Gilbert,  it  cannot  be  an 
authority  for  what  is  contended  for ;  the  bond  of  several  persons  can- 
not be  distinguished  from  the  bond  of  oiuj  person,  as  applied  to  (his 
case,  it  was  never  licard  of  that  a  truntee  could  lend  an  infant's 
money  on  private  security.  Tiiis  i.s  a  rule  that  sliould  be  rung  in  tiio 
ears  of  every  person  who  acts  in  the  cliaracter  of  trustee,  for  such  an 
act  may  very  probably  be  done  witli  the  best  and  honestest  intention, 
yet  no  rule  in  a  Court  of  K(|uity  is  so  well  established  as  t1\is.  I  nuist, 
therefore,  direct  an  account  agairmt  tlie  exi'cutors  of  this  money,  and 
order  tiiem  to  pay  it  in  moieties,  with  interest,  at  4  per  cent,  and  1  am 
bound  to  make  tliem  pay  the  costs  of  the  cause.' 

1  Terry  v.  'lorry,  1  Kilcii,  14;».  n.  (<i),  .1  Sw.  80  ii.  (n) ;  Anon.  Lofft.  4;i'J  ;  A.lyo  v. 
Fouillntoan,  1  f'ox,  Ki\.  24  ;  Kfbloi'.  Thomimnn,  .3  Hro.  C.  C.  112  ;  Wilkes  v.  Steward, 
(i  f'oupcr,  0;  I'f.rock  ''.  Hfiliiif^tnn,  :,  VvH.  7;i4,  7'.»'J  ;  Vi^nui!*  v.  I'.iii(icl<l.  .'l  M.iM  r.2 ; 
W,ilk(!r  I.'.  SymoiulB,  1  Sw.  1,  0.3  (ovnrnilinp  Harden  r.  I'nr.'xiiiH,  1  Kdip,  II.'),  niid  Ihile'n 
case,  .3  Sw.  6.3  n.  (/>)  )  ;  ClonRh  r.  Bond.  3  M.  &  Cr.  4»0,  490  ;  Dnrkn  v.  Martyn,  1  Bonv. 
52.')  ;  IJetiden  v.  Wesley,  '2U  Meav.  21.3  ;  [n  rr  Tnrker.  !»4,  1  Ch.  724  ;  I'erley  r.  Snow,  1 
Hitchic.  Kq.  .37.3;  Worts  r.  Worts,  18  Ont.  .3.32  ;  Barney  r,  Saunders,  10  How.  MU.hi^; 
l/cwis  V.  Cook,  18  Ala.  3.34  (semhie) ;  Moore  v,  nninilton,4  Kla.  112;  Slate  c.  Johnson, 


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i^X 


472  KING  V.    TALBOT.  [CHAP.  V. 


A.  KING  V.  C.  N.  TALBOT  and  Others. 
In  the  Court  of  Appeals,  New  York,  March,  1869. 

[Reported  in  40  New  York  Reports,  76.] 

"Woodruff,  J.^  It  is  conceded,  that  in  England,  the  rule  is,  and  has 
long  been  settled,  that  a  trustee,  holding  funds  to  invest  for  the  benefit 
of  his  cestui  que  trust,  is  bound  to  make  such  investment  in  the  public 
debt,  for  the  safet}''  whereof  the  faith  of  their  government  is  pledged  ; 
or  in  loans,  for  which  real  estate  is  pledged  as  security.  And  that, 
although  the  terms  of  the  trust  commit  the  investment,  in  general 
terms,  to  the  discretion  of  the  trustee,  that  discretion  is  controlled  by 
the  above  rule,  and  is  to  be  exercised  within  the  very  narrow  limits 
which  it  prescribes. 

As  a  purely  arbitrary  rule,  resting  upon  any  special  policy  of  that 
country,  or  on  any  peculiarity  in  its  condition,  it  has  no  application  to 
this  country.  It  is  not  of  the  common  law.  It  had  no  applicability 
to  the  condition  of  this  country  while  a  colony  of  Great  Britain,  and 
cannot  be  said  to  have  been  incorporated  in  our  law. 

So  far,  and  so  far  only,  as  it  can  be  said  to  rest  upon  fundamental 
principles  of  equity,  commending  themselves  to  the  conscience,  and 
suited  to  the  condition  of  our  affairs,  so  far  it  is  true,  that  it  has  ap- 
propriate application  and  force,  as  a  guide  to  the  administration  of  a 
trust,  here,  as  well  as  in  England. 

I  do  not,  therefore,  deem  it  material  to  inquire,  through  the  multi- 
tude of  English  cases,  and  the  abundant  texts  of  the  law  writers,  into 
the  origin  of  the  rule  in  England,  or  the  date  of  its  early  promulgation. 
Nor,  in  this  particular  case,  do  I  deem  it  necessary  to  determine 
whether  it  should,  by  precise  analogy,  be  deemed  to  prohibit  here 
investments  in  any  other  public  debt  than  that  of  the  State  of  New 
York. 

Neither,  in  my  judgment,  are  we  at  liberty,  in  the  decision  of  this  case, 

7  Blackf.  529;  Mattocks  v.  Moulton,  84  Me.  545,  552;  Hunt  v.  Gontrum  (Md.  1894), 
30  Atl.  R.  620 ;  Harding  v.  Larned,  4  All.  426 ;  Clark  v.  Garfield,  8  All.  427 ;  Judge 
V.  Mathes,  60  N.  H.  43.3  (but  see  Knowlton  v.  Bradley,  17  N.  II.  458) ;  Gray  v.  Fox, 
Saxton,  259  ;  Vreeland  r.  Schoonmaker,  16  N.  J.  Erj.  512;  Sherman  v.  Lanier,  39  N.J. 
Eq.  249  ;  Brewster  v.  Demarest,  40  N.  J.  Eq.  559 ;  Smith  v.  Smith,  4  John.  Ch.  281  ; 
Baskin  v.  Baskin,  4  Lans.  90 ;  Le  Fever  v.  Hasbrouck,  2  Dem.  567  ;  Re  Foster,  1 5 
Hud,  387  ;  Re  Cant,  5  Dem.  269 ;  Re  Blauvelt,  20  N.  Y.  Sup.  119;  Nyce's  Est.,  5  Watts 
&  S.  254;  (but  see  Re  Ogle,  5  Barr,  15);  Swyer's  App.  5  Barr,  377;  Wills'  App. 
22  Pa.  325  ;  Frankenfield's  App.  127  Pa.  369,  n. ;  Baer's  App.,  127  Pa.  360 ;  Nance  v. 
Nance,  1  S.  Ca.  209  ;  Dunn  i;.  Dunn,  1  S.  Ca.  350;  Davidson  v.  Moore,  14  S.  Ca.  251 ; 
Wynne  v.  Warren,  2  Heisk.  118  Accord. 

Higgins  V.  McClure,  7  Bush,  379 ;  Barney  v.  Parsons,  54  Vt.  623  Contra. 

The  creator  of  the  trust  may  authorize  investments  upon  personal  security  alone. 
Denike  v.  Harris,  84  N.  Y.  89.  —  Ed. 

1  r)nly  so  much  of  the  opinion  of  the  Court  is  given  as  relates  to  the  propriety  of 
the  trustees'  investment.  —  Ed. 


SECT.  IV.]  KING   V.   TALBOT.  473 

to  propound  any  new  rule  of  conduct,  by  \ih.\ch  to  judge  of  the  liability 
of  trustees  now  subjected  to  examination.  Under  trusts  heretofore 
created,  the  managers  thereof  performed  their  duty  with  the  aid  of 
rules  for  the  exercise  of  their  discretion  which  were  the  utterance  of 
equity  and  good  conscience,  intelligible  to  their  understanding,  and 
available  for  their  information  ;  otherwise,  trusts  heretofore  existing 
have  been  traps  and  pitfalls  to  catch  the  faithful,  prudent,  and  diligent 
trustee,  without  the  power  to  avoid  them. 

But  it  is  not  true,  that  there  is  no  underlying  principle  or  rule  of 
conduct  in  the  administration  of  a  trust  wLicii  calls  for  obedience. 
Whether  it  has  been  declared  by  the  courts  or  not,  whether  it  has  been 
enacted  in  statutes  or  not,  whether  it  is  in  familiar  recognition  in  the 
affairs  of  life,  there  appertains  to  the  relation  of  trustee  and  cestui  que 
trust,  a  duty  to  be  faithful,  to  be  diligent,  to  be  prudent  in  an  admin- 
istration entrusted  to  the  former,  in  confidence  in  his  fidelity,  diligence, 
and  prudence. 

To  this  general  statement  of  the  duty  of  trustees  there  is  no  want  of 
promulgation  or  sanction,  nor  want  of  sources  of  information  for  their 
guidance.  In  the  whole  history  of  trusts,  in  decisions  of  courts  for  a 
century  in  England,  in  all  the  utterances  of  the  courts  of  this  and  the 
other  States  of  this  country,  and  not  less  in  the  conscious  good  sense 
of  all  intelligent  minds,  its  recognition  is  uniform. 

The  real  inquiry,  therefore,  is,  in  my  judgment,  in  the  case  before 
us,  and  in  all  like  eases :  Has  the  administration  of  the  trust,  created 
by  the  will  of  Charles  W.  King  for  the  benefit  of  the  plaintiff,  been 
governed  by  fidelity,  diligence,  and  prudence?  If  it  has,  the  defendants 
are  not  liable  for  losses  which,  nevertheless,  have  happened. 

This,  however,  aids  but  little  in  the  examination  of  the  defendants' 
conduct,  unless  the  terms  of  defiuitiou  are  made  more  precise.  What 
are  fidelity,  diligence,  and  discretion?  and  what  is  the  measure  thereof, 
which  trustees  are  boun<l  to  possess  and  exercise? 

It  is  hardly  necessary  to  say,  that  fidelity  imports  sincere  and  single 
intention  to  administer  the  trust  for  the  best  interest  of  the  parties 
beneficially  interested,  and  according  to  the  duty  wliich  the  trust  im- 
poses.    And  this  is  but  a  paraphrase  of  "  good  faith." 

The  meaning  and  inoasure  of  the  required  j)rud('nco  and  dilig«'nr'o 
has  been  rept-aloilly  discussed,  and  with  a  diffiTi-nce  of  opinion.  In 
extreme  rigor,  it  has  sometimes  been  said,  that  they  must  be  such  and 
as  great  as  that  possessed  and  exercised  by  the  Court  of  Chancery 
itself.  And  again,  it  has  been  said,  that  they  are  tr)  bi?  siicli  as  the 
trustee  exercises  in  the  condurt  of  liis  f)wn  affairs,  of  like  nafurc,  an«l 
between  these  is  the  dedaralion,  that  they  are  to  be  the  highest  pru- 
dence and  vigilance  or  they  will  not  cxonerat<^. 

My  own  judgment,  after  an  examination  of  tin-  subject,  and  bearing 
in  mind  tlie  nature  of  the  ollice,  its  importance,  and  the  considerations 
which  alone  induce  men  of  siiitahh-  experience,  cajiacity,  and  respon- 
Bibility  to  accept  its  usually  thankless  burden,  is,  that  the  just  and  truo 


474  KING   V.   TALBOT.  [CIIAP.  V. 

rule  is,  that  tlie  trustee  is  bound  to  employ  such  diligence  and  such 
prudence  in  the  cure  and  management,  as  in  general,  prudent  men  of 
discretion  and  intelligence  in  such  matters  employ  in  their  own  like 
afiairs. 

This  necessarily  excludes  all  speculation,  all  investments  for  an  un- 
certain and  doubtful  rise  in  the  market,  and,  of  course,  everything 
that  docs  not  take  into  view  the  nature  and  object  of  the  trust,  and 
the  consequences  of  a  mistake  in  the  selection  of  the  investment  to  be 
made. 

It,  therefore,  does  not  follow,  that,  because  prudent  men  may,  and 
often  do,  conduct  their  own  affairs  with  the  hope  of  growing  rich,  and 
therein  take  the  hazard  of  adventures  which  they  deem  hopeful,  trus- 
tees may  do  the  same ;  the  preservation  of  the  fund,  and  the  procure- 
ment of  a  just  income  therefrom,  are  primary  objects  of  the  creation 
of  the  trust  itself,  and  are  to  be  primarily  regarded. 

If  it  be  said,  that  trustees  are  selected  by  the  testator,  or  donor  of 
the  trust,  from  his  own  knowledge  of  their  capacity,  and  without  any 
expectation  that  they  will  do  more  than,  in  good  faith,  exercise  the 
discretion  and  judgment  they  possess,  the  answer  is :  First,  the  rule 
properly  assumes  tiie  capacity  of  trustees  to  exercise  the  prudence  and 
diligence  of  prudent  men,  in  general ;  and,  second,  it  imposes  the  duty 
to  observe  and  know,  or  learn  what  such  prudence  dictates  in  the  mat- 
ter in  hand. 

And  once  more,  the  terms  of  the  trust,  and  its  particular  object  and 
purpose,  are,  in  no  case,  to  be  lost  sight  of  in  its  administration. 

Lewin,  in  his  Treatise  on  the  Law  of  Trusts,  &c.  (p.  332),  states, 
as  the  result  of  the  several  cases,  and  as  the  true  rule,  that  "  a  trustee 
is  bound  to  exert  precisely  the  same  care  and  solicitude  in  behalf  of  his 
cestui  que  trust,  as  he  would  do  for  himself ;  but  greater  measure  than 
this,  a  court  of  equity  will  not  exact."  In  general,  this  is  true,  but  if 
it  imports  that  if  he  do  what  men  of  ordinary  prudence  would  not  do, 
in  their  own  affairs,  of  a  like  nature,  he  will  be  excused,  on  showing 
that  he  dealt  with  his  own  property  in  like  want  of  discretion,  it  cannot 
be  sustained,  as  a  safe  or  just  rule  towards  cestuis  que  trust;  nor  is  it 
required  by  reasonable  indulgence  to  the  trustee ;  it  would  be  laying 
the  duty  to  be  prudent  out  of  view  entirely,  and  I  cannot  think  the 
writer  intended  it  should  be  so  understood. 

The  Massachusetts  cases  (9  Pick.  140;  20  Pick.  116),  cited  by  the 
counsel  for  the  defendants,  are  in  better  conformity  with  the  rule,  as  I 
have  stated  it. 

To  apply  these  general  views  to  the  case  before  us,  and  with  the  de- 
ductions which  necessarily  flow  from  their  recognition  :  The  testator 
gave  to  each  of  his  children  fifteen  thousand  dollars,  the  interest  on  the 
same,  so  far  as  required,  to  be  applied  to  their  maintenance  and  educa- 
tion, and  the  principal,  with  any  accumulations  thereon,  to  be  paid  to 
them  severally  on  their  majority ;  appointed  the  defendant,  Talbot, 
and  his  partner,  Mr.  Olyphant,  executors,  "  entrusting  to  their  discre* 


SEoT.  IV. j  KING   V.   TALBOT.  475 

tion  the  settlement  of  my  affairs  and  the  investment  of  my  estate  for 
the  benefit  of  my  heu-s." 

If  I  am  correct  in  my  views  of  the  duty  of  trustees,  this  last  clause 
neither  added  to,  nor  in  any  wise  affected  the  duty  or  responsibility  of 
these  executors ;  without  it,  they  were  clothed  with  discretion  ;  with  it,  • 
their  discretion  was  to  be  exercised  with  all  the  care  and  prudence  be 
lono-ins  to  their  trust  relation  to  the  beneficiaries.  Such  is  the  distinct 
doctrine  of  the  cases  very  largely  cited  by  the  coinisel  for  the  parties, 
and  is,  I  think,  the  necessary  conclusion  from  the  just  rule  of  duty  I 
have  stated. 

What,  then,  was  the  office  of  the  trustees,  as  indicated  by  the  terms 
and  nature  of  the  trust?     If  its  literal  reading  be  followed,  it  directed 
that  "  fifteen  thousand  dollars"  in   money  be  placed  at  "interest." 
The  nature  of  the  trust,  according  to  the  manifest  intent  of  the  testator, 
required  that,  in  order  to  the  maintenance  and  support  of  infant  child- 
ren, whose  need,  in  that  regard,  would  be  constant  and  unremitting, 
that  interest  should  flow  in  with  regularity  and  without  exposure  to  the 
uncertainties  or  fluctuations  of  adventures  of  any  kind.     And  then  the 
fund  should  continue,  with  any  excess  of  such  interest  accumulated  for 
their  benefit,  so  as  to  be  delivered  at  the  expiration  of  tlieir  minority. 
Palpably,  then,  the  first  and  obvious  duty  was  to  place  that  fifteen 
thousand  dollars  in  a  state  of  security ;  second,  to  see  to  it  that  it  was 
productive  of  interest;  and  third,  so  to  keep  the  fund,  that  it  should 
always  be  suVtject  to  future  recall  for  the  benefit  of  the  cestui  que  trust. 
I  do  not  attach  controlling  importance  to  the  word  "  interest"  used 
by  the  testator,  but  I  do  regard  it  as  some  guide  to  the  trustees,  as  an 
expression  of  the  testator  that  he  did  not  contemplate  any  adventure 
with  the  fund,  with  a  view  to  profits  as  such. 

But,  apart  from  tlie  inference  from  tiie  use  of  that  word,  I  think  it 
should  be  said,  that  whenever  money  is  held  upon  a  trust  of  this  descrip- 
tion, it  is  not  according  to  its  nature,  nor  within  any  just  id(>a  of 
prudence,  to  place  the  principal  of  the  fund  in  a  condition  in  wliich 
it  is  necessarily  exposed  to  the  hazard  of  loss  or  gain,  according  to  the 
success  or  failure  of  the  enterprise  in  which  it  is  embarked,  and  in 
which,  by  the  very  terms  of  the  inoestment,  the  principal  is  not  to  be  re- 
turned at  all. 

It  is  not  denied,  tliat  the  employment  of  the  fund  as  capital  in  trade 
would  be  a  clear  departure  from  the  duty  of  trustees.  If  it  cannot  lui 
so  employed  under  the  management  of  a  copartnership,  I  sec  no  rcastni 
for  saying  that  the  incorporation  of  the  partners  tends,  in  any  degree, 
to  justify  it. 

The  moment  the  fund  is  invested  in  bank,  or  insurance,  or  r.iih-o;»d 
stock,  it  has  left  the  control  of  the  truHtees ;  its  safety  and  tlie  hazard 
or  risk  of  loss  is  no  longer  dependent  upon  their  skill,  care,  or  discre- 
tion in  its  custody  or  management,  and  the  terms  of  the  investment 
do  not  contemplate  that  it  ever  will  be  returned  to  the  trustees. 


476  KING    V.    TALBOT.  [CIIAP.  V. 

If  it  be  said,  that,  at  any  time,  the  trustees  may  sell  the  stock, 
(which  is  but  another  name  for  their  interest  in  the  property  and  busi- 
ness of  the  corporation),  and  so  repossess  themselves  of  the  original 
capital,  I  reply,  that  is  necessarily  contingent  and  uncertain  ;  and  so 
the  fund  has  been  voluntarily  placed  in  a  condition  of  uncertainty,  de- 
pendent upon  two  contingencies :  First,  the  practicability  of  making 
the  business  profitable;  and,  second,  the  ju<lgment,  skill,  and  fidelity  . 
of  those  who  liate  tlie  management  of  it  for  that  purpose. 

If  it  be  said,  that  men  of  the  highest  prudence  do,  in  fact,  invest 
their  funds  in  such  stocks,  becoming  subscribers  and  contributors 
thereto,  in  the  very  formation  thereof,  and  before  the  business  is  de- 
veloped, and  in  the  exercise  of  their  judgment  on  the  probability  of 
its  safety  and  productiveness,  the  answer  is,  so  do  just  such  men, 
looking  to  the  hope  of  profitable  returns,  invest  money  in  trade,  and 
adventures  of  various  kinds.  In  their  private  affairs,  they  do,  and 
they  lawfully  may,  put  their  principal  funds  at  hazard  ;  in  the  affairs 
of  a  trust  they  may  not.  The  very  nature  of  their  relation  to  it 
forbids  it. 

If  it  be  said,  that  this  reasoning  assumes,  that  it  is  certainly  practi- 
cable so  to  keep  the  fund  that  it  shall  be  productive,  and  yet  safe 
against  any  contingency  of  loss ;  whereas,  in  fact,  if  loaned  upon  bond 
and  mortgage,  or  upon  securities  of  any  description,  losses  from  insol- 
vency and  depreciation  may,  and  often  do  happen,  notwithstanding 
due  and  proper  care  and  caution  is  observed  in  their  selection.  Not  at 
all.  It  assumes  and  insists,  that  the  trustees  shall  not  place  the  fund 
where  its  safety  and  due  return  to  their  hands  will  depend  upon  the 
success  of  the  business  in  which  it  is  adventured,  or  the  skill  and 
honesty  of  other  parties  entrusted  with  its  conduct ;  and  it  is  in  the 
selection  of  the  securities  for  its  safety  and  actual  return,  that  there  is 
scope  for  discretion  and  prudence,  which,  if  exercised  in  good  faith, 
constitute  due  performance  of  the  duty  of  the  trustees. 

My  conclusion  is,  therefore,  that  the  defendants  were  not  at 
liberty  to  invest  the  fund  bequeathed  to  the  plaintiff,  in  stock  of  the 
Delaware  and  Hudson  Canal  Company ;  of  the  New  York  and  Harlem 
Sailroad  Company ;  of  the  New  York  and  New  Haven  Railroad  Com- 
pany ;  of  the  Bank  of  Commerce ;  or  of  the  Saratoga  and  Washington 
Railroad  Company  ;  and  that  the  plaintiff  was  not  bound  to  accept 
these  stocks,  as  and  for  his  legacy,  or  the  investment  tliereof . 

In  regard  to  the  bonds  of  the  Hudson  River  Railroad  Company,  and 
of  the  Delaware  and  Hudson  Canal  Company,  it  appears  by  schedule 
B.,  given  in  evidence,  that  the  former  were  mortgage  bonds  ;  but  what 
was  the  extent  or  sufficiency  of  the  security  afforded  by  such  mortgage, 
or  what  property  was  embraced  in  it,  does  not  appear,  nor  does  it  ap- 
pear, whether  there  was  any  security  whatever  for  the  payment  of  the 
canal  company's  bond. 

It  is  not  necessary  for  the  decision  of  this  case,  and  I  am  not  pre* 


SECT.  IV.]  KING   V.   TALBOT.  477 

pared  to  saj-,  that  au  iuvestmeut  iu  the  bonds  of  a  railroad,  or  other 
corporation,  the  payment  whereof  is  secured  by  a  mortgage  upon  real 
estate,  is  not  suitable  and  proper  under  any  circumstances. 

If  the  real  estate  is  ample  to  insure  the  payment  of  the  bonds,  I  do 
not,  at  present,  perceive  that  it  is  necessarily  to  be  regarded  as  in- 
ferior to  the  bond  of  an  individual  secured  by  mortgage ;  it  would,  of 
course,  be  open  to  all  the  inquiries  which  prudence  would  suggest,  if 
the  bond  and  mortgage  were  that  of  an  individual.-  The  nature,  the 
location,  and  the  sutlieienc\'  of  the  security,  and  the  terms  of  the  mort- 
gage, and  its  availability  for  the  protection  and  ultimate  realization  of 
the  fund,  must,  of  course,  enter  into  the  consideration. 

But  it  is  not  necessary  to  pursue  that  subject.  The  plaintiff,  in  his 
complaint,  rejects  the  entire  investment.  The  court  below  held,  that 
it  was  equitable  that  the  plaiutiti  should  be  held  to  receive  the  whole  or 
none  of  the  stocks  and  bonds,  and  to  that  ruling  neither  the  plaintiff 
nor  the  defendants  have  excepted  ;  and  therefore,  the  question,  whether 
the  judgment  below  was  correct  in  that  respect  is  not  before  us. 

It  is  proper,  however,  to  say,  that  I  do  not  clearly  apprehend  the 
propriety  of  that  ruling,  unless  it  be  on  the  ground  that  the  plaintiff, 
in  his  complaint,  did  so  elect. 

The  rule  is  perfectly  well  settled,  that  a  cestui  que  trust  is  at  liberty 
to  elect  to  approve  an  unauthorized  investment,  and  enjoy  its  profits, 
or  to  reject  it  at  his  option  ;  and  I  perceive  no  reason  for  saying,  that 
■where  the  trustee  has  divided  the  fund  into  parts  and  made  separate 
investments,  the  cestui  que  ti-ust  is  not  at  liberty,  on  equitable  as  well 
as  legal  grounds,  to  approve  and  adopt  sucli  as  he  tliiiiks  it  for  his 
interest  to  approve.  The  money  invested  is  his  money  ;  and  in  lespect 
to  each  and  every  dollar,  it  seems  to  me,  he  has  an  uiKjualilied  right  to 
follow  it,  and  claim  the  fruits  of  its  investment,  and  that  the  trustee 
cannot  deny  it.  The  fact,  tiiat  the  trustee  has  made  other  investments 
of  other  parts  of  the  fund  wiiich  tlie  rcsffii  que  trust  is  not  bound  to 
approve,  and  di.sallirms,  canncjt,  I  think,  affect  the  power.  For  ox- 
ample,  supi)ose,  in  the  present  case,  the  rpstui  que,  trust,  on  di-livery 
to  him  of  all  the  securities  and  bonds  in  wliich  liis  legacy  had  appeared 
invested,  had  declared:  Althougli  these  investments  are  improperly 
made,  not  in  accordance  with  tlie  intent  of  tlu>  testator,  nor  in  the  due 
performanee  of  your  duty,  I  waive  all  objection  on  that  account,  except 
as  to  the  stock  of  the  Saratoga  and  Washington  Kaih-oad  Company. 
That,  I  reject  and  return  U)  you.  Is  it  doubtful  that  his  position  must 
be  sustainc^l? 

Tlie  result  is,  that  the  main  features  of  the  judgment  herein  must  be 
affirmed. 

All  the  judges  concur  in  the  result  to  wiiich  Judge  Woodkikk  ar- 
rived. 

Ml  KUAY,  J.,  thought  it  ft  setth'd  principle  of  law,  in  this  State,  that 
a  trustee,  holding  trust  fundn,  for  investment  for  the  benefit  of  minor 
children,  must  invest  in  Goveruuieut  or  real  estate  securities,  and  that 


478  DICKINSON,   APPELLANT.  [CHAP.  V. 

any  other  investment  wonld  be  a,  breach  of  duty,  and  the  trustee  would 
be  personally  liable  for  any  loss.  Grover,  Daniels,  and  James,  JJ., 
concurred.     Hunt,  Ch.  J.,  Mason  and  Lott,  JJ.,  contra.^ 


WILLIAM  A.   DICKINSON,  Appellant. 
In  the  Supreme  Court,  Massachusetts,  September  5,  1890. 

[Reported  in  L52  Massachusetts  Reports,  184.] 

Appeal  from  a  decree  of  the  Probate  Court,  disallowing  in  part  the 
account  of  "William  A.  Dickinson  as  trustee  under  a  deed  of  trust. 
Hearing  before  C.  Allen,  J.,  who  reported  the  case  for  the  determina- 
tion of  the  full  court.  ^ 

G.  Wells  {J.  JBurnes  with  him),  for  the  appellant. 

D.  W.  Bond,  contra. 

Field,  C.  J.  The  general  principles  which  should  govern  a  trustee 
in  making  investments,  when  the  creator  of  the  trust  has  given  no 
specific  directions  concerning  investments,  have  been  repeatedly  de- 

1  Emelie  v.  Emelie,  7  Bro.  P.  C.  259 ;  Trafford  v.  Boehm,  3  Atk.  440  ;  Mills  v. 
Mills,  7  Sim.  .501  ;  Howe  v.  Dartmouth,  7  Ves.  137, 150;  Davies  v.  Hodgson,  25  Beav. 
177  ;  Hynes  v.  Kedington,  1  J.  &  Lat.  589,  7  Jr.  Eq.  405  8.  c. ;  Randolph  v.  East 
Birmingham  Co.,  Ala.  '94,  16S.  R.  126;  1  Mills,  Ann.  St.  Colorado,  (1891)  p.  248,  §  359; 
Tucker  v.  State.  72  Ind.  242  ;  Smith  v.  Smith,  7  J.  J.  Marsh.  238 ;  Clark  v.  Anderson, 
13  Bush,  111,  119  ;  Lathrop  v.  Smallej',  23  N.  J.  Eq.  192  ;  Ashurst  v.  Potter,  29  N.  J. 
Eq.  625,  632;  Tucker  v.  Tucker,  33  N.  J.  Eq.  235;  Re  Mundy,  3  N.  J.  L.  J.  185;  Re 
Voorhees.  3  N.  J.  L.  J.  211  ;  Ackerman  v.  Emott,  4  Barb.  626 ;  Adair  v.  Brimmer,  74 
N.  Y.  539  ;  Mills  v.  Hoffman,  26  Hun,  594 ;  Cook  v.  Cook,  34  Fed.  Rep.  249  (New 
York  law) ;  Hemphill's  App.  18  Pa.  304  ;  Worrell's  App.,  23  Pa.  44;  Pray's  App.,  34 
Pa.  100;  Ihmsen's  App.  43  Pa.  431 ;  1  Brightly's  Purdon's  Dig.  (12th  Ed.  1894)  p.  35, 
§  69  ;  Simmons  !».  Oliver,  74  Wis.  633  Accord. 

See  also  Mattocks  v.  Moulton,  84  Me.  545,  554. 

The  same  rule  has  heen  adopted  by  statute  in  some  jurisdictions  where,  formerly, 
trustees  had  a  wide  latitude  in  investments.  Bowen  v.  Wright,  39  Ga.  96 ;  Moses  v. 
Moses,  50  Ga.  9  ;  Bell  v.  Sawyer,  59  N.  H.  393.  (Compare  Kimball  v.  Reding,  31  N.  H. 
352  ;  French  v.  Currier,  47  N.H.  88. 

By  Lord  St.  Leonards's  Act,  22  &  23  Vict.  c.  35  §  32,  trustees  were  authorized  to 
invest  in  Bank  of  England  Stock,  Bank  of  Ireland  Stock,  or  East  India  Stock.  By 
the  Trust  Investment  Act,  1889,  the  field  of  legitimate  investment  was  enlarged  so  as 
to  include  Metropolitan  Board  of  Works,  or  London  County  Council  stock,  preferred 
stock  in  railroad  or  water  companies  of  Great  Britain  and  Ireland,  which  for  ten  con- 
secutive years  preceding  had  paid  3  per  cent  dividends  on  tlie  common  stock.  Corpor- 
ation or  County  Council  stock  and  Water  Commission  stock. 

By  the  Trustee  Act,  1893,  56  &  57  Vict.  c.  53,  a  tru.'(tee  may  invest  in  certain  other 
securities,  analogous  to  those  mentioned  in  the  Truet  Investment  Act  of  1889. 

By  2  Tenn.  St.  (1871)  §  3664,  b.  trustees  may  invest  in  "public  stocks  or  bonds  of 
the  United  States."  —  Ed. 

2  The  judge's  report  is  omitted.  —  Ed. 


i->2^ 


//^.^  ^  -^-^ 


SECT.  IV.]  DICKINSON,   APPELLANT.  479 

clared  by  this  court.     Harvard  College  v.  Amory,^  Lovell  v.  Minot,' 
Brown  v.  French,*  Bowker  i\  Pierce,''  Hunt,  appellant.^ 

The  rule  in  general  terms  is,  that  a  trustee  must  in  the  investment 
of  the  trust  fund  act  with  good  faith  and  sound  discretion,  and  must, 
as  laid  down  in  Harvard  College  y.  Aniory,  at  page  461,  "observe 
how  men  of  prudence,  discretion,  and  intelligence  manage  their  own 
affairs,  not  in  regard  to  speculation,  but  in  regard  to  the  permanent  y' 
disposition  of  their  funds,  considering  the  probable  income,  as  well  as 
the  probable  safety  of  the  capital  to  be  invested." 

It  is  said  in  the  opinion  in  Brown  v.  French,  ubi  supra:  "If  a 
more  strict  and  precise  rule  should  be  deemed  expedient,  it  must  be 
enacted  hj  the  Legislature.  It  cannot  be  introduced  by  judicial  deci- 
sion without  working  great  hardship  and  injustice."  It  is  also  said, 
"  The  question  of  the  lawfulness  and  fitness  of  the  investment  is  to 
be  judged  as  of  the  time  when  it  was  made,  and  not  by  subsequent 
facts  which  could  not  then  have  been  anticipated."  A  trustee  in  this 
Commonwealth  undoubtedly  finds  it  difficult  to  make  satisfactory  in- 
vestments of  trust  property.  The  amount  of  funds  seeking  invest- 
ment is  very  large ;  the  demand  for  securities  which  are  as  safe  as  is 
possible  in  the  affairs  of  this  world  is  great ;  and  the  amount  of  such 
securities  is  small,  when  compared  with  the  amount  of  money  to  be 
invested.  Trusts  frequently  provide  for  tlie  payment  of  incouie  to 
certain  persons  duriug  their  lives,  as  well  as  for  the  ultimate  transfer 
of  the  corpus  of  the  trust  property  to  persons  ascertained,  or  to  be 
ascertained,  at  the  termination  of  the  trust;  and  a  trustee  must,  so 
far  as  is  reasonably  practicable,  hold  the  balance  even  between  the 
claims  of  the  life  tenants  and  those  of  the  remaindermen.  The  life 
tenants  desire  a  large  income  from  tiie  trust  propert}',  but  they  are 
only  entitled  to  such  an  income  as  it  can  earn  when  invested  in  such 
securities  as  a  prudent  man  investing  his  own  money,  and  Iiaving  re- 
gard to  the  permanent  disposition  of  the  fund,  would  consider  safe. 
A  i)rudent  man  possessed  of  considerable  wealtii,  in  investing  u  small 
part  of  his  property,  may  wisely  enough  take  risks  which  a  trustee 
would  not  be  justified  in  taking.  A  trustee,  whose  duty  it  is  to  keep 
the  trust  fund  safely  invested  in  productive  proi)erty,  ought  not  to 
hazard  the  safety  of  the  property  under  any  tt'inptation  to  make  ex- 
traordinary profits.  Our  cases,  however,  show  tiiat  trustees  in  tliis 
Commonwealtli  are  pcruiitted  to  invest  portions  of  trust  funds  in  divi- 
dend  paying  stocks  and  interest  bearing  bonds  of  private  business 
corporations,  when  the  corporations  have  acquired,  by  reason  of  tiie 
amount  of  tiieir  properly,  and  the  prudent  management  of  tlieir  af- 
fairs, such  a  reputation  that  cautious  and  intelligent  persons  eoinmonly 
invest  their  own  money  in  such  stocks  and  bonds  as  permanent  invest- 
ments.* 

1  9  Pick.  446.  «  20  Pick.  110.  »  125  Miws.  410. 

♦  1.10  Mjuj-m.  262.  '  141  Mtuw.  .'il.'j. 

6  Ijtm.ir  V.  Micou,  112  U.  S.  452,  114  U.  S.  218  (Alabama  Law);  Foecuo  v.  Ljoft 


4S0  DICKINSON,   AI'PELLANT.  [CHAP.  V. 

The  experience  of  recent  years  has,  perhaps,  taught  the  whole  com- 
nnniitv  that  there  is  a  greater  uncertainty  in  the  permanent  vaUie  of 
raihoad  pro[)erties  in  the  unsettled  or  newly  settled  parts  of  tiiis  coun- 
try than  was  anticipated  nine  years  ago.  Without,  however,  taking 
iuto  consideration  facts  which  are  now  commonly  known,  and  confining 
ourselves  strictly  to  the  evidence  in  the  case,  and  the  considerations 
which  ought  to  have  been  present  to  the  mind  of  tiie  appellant,  when 
in  3Iay  and  August,  1881,  he  made  the  investments  in  the  stock  of  the 
Union  Pacific  Railroad  Company,  we  think  it  appears  that  he  acted  in 
entire  good  faith,  and  after  careful  inquiry  of  many  persons  as  to  the 
value  of  the  stock  and  the  propriety  of  the  investments.  We  cannot 
say  that  it  is  shown  to  our  satisfaction  that  the  trustee  so  far  failed  to 
exercise  a  sound  discretion  that  the  investments  should  be  held  to  be 
wholly  unauthorized.  Still,  it  must  have  been  manifest  to  any  well 
informed  person  in  the  year  1881,  that  the  Union  Pacific  Railroad  ran 
through  a  new  and  comparatively  unsettled  country ;  that  it  had  been 
constructed  at  great  expense,  as  represented  by  its  stock  and  bonds, 
and  was  heavily  indebted  ;  that  its  continued  prosperity  depended  upon 
many  circumstances  which  could  not  be  predicted  ;  and  that  it  would 
be  taking  a  considerable  risk  to  invest  any  part  of  a  trust  fund  in  the 
stock  of  such  a  road. 

In  this  case  the  whole  trust  fund  appears,  by  the  first  account,  to 
have  been  $16,200.05.  On  May  9,  1881,  the  trustee  bought  thirty 
shares  of  the  stock  of  the  Union  Pacific  Railroad  Company  at  $119 
per  share,  which,  with  commissions,  amounted  to  $3,573.75.  This  is 
an  investment  of  between  one  fourth  and  one  fifth  of  the  whole  trust 
fund  in  this  stock,  and  is  certainly  a  large  investment  relatively  to  the 
whole  amount  of  the  trust  fund  to  be  made  in  the  stock  of  any  one 
corporation.  After  this,  on  August  16,  1881,  he  purchased  twenty 
shares  more  at  $123  per  share,  amounting  with  commissions  to  $2,475. 
The  last  investment,  we  think,  cannot  be  sustained  as  made  in  the 
exercise  of  a  sound  discretion.  Wliile  we  recognize  the  hardship  of 
compelling  a  trustee  to  make  good  out  of  his  own  property  a  loss  occa- 
sioned by  an  investment  of  trust  property  which  he  has  made  in  good 
faith,  and  upon  the  advice  of  persons  whom  he  thinks  to  be  qualified 
to  give  advice,  we  cannot  on  the  evidence  hold  that  the  trustee  was 
justified  in  investing  in  such  stock  as  this  so  large  a  proportional  part 
of  the  property. 

It  appears  by  the  report  of  the  single  justice  before  whom  the  case 
was  tried,  that  "  the  time  has  now  come  for  a  final  distribution  of  said 

55  Ala.  440, 452;  Gray  v.  Lynch,  8  Gill,  403;  McCoy  v  Horwitz,  62  Md.  183  ;  Harvard 
Colleger.  Amory,  9  Pick.  446;  Lovell  v.  Miuot,  20  Pick.  116;  Kininonth  v.  Brigham, 
5  All.  270,  277  ;  Brown  v.  French,  125  Ma.<s8.  410;  Bowker  v.  Pierce,  130  Mass.  262; 
Hunt,  App.,  141  Ma.s9.  515,  Smyth  v.  Burns,  25  Miss.  422;  Washington  v.  Emery,  4 
Jones,  Eq.  32,  (but  see  Collins  y.  Gooch,  97  N.  Ca.  186);  Peckham  r.  Newton,  15 
R.  I.  321  ;  Boggs  v.  Adger,  4  Rich.  Eq.  408  (but  see  Allen  v.  Gaillard,  1  S.  Ca.  279) 
Accord.  —  Ed. 


SECT.  IV.]  CANN   V.   CANN.  481 

trust  fund."  It  does  not  appear  that,  when  the  first  account  was  al- 
lowed, there  was  any  adjudication  of  the  questions  now  before  us,  and 
they  are  not  therefore  resjndkata,  and  no  assent  to  these  investments 
is  shown  on  the  part  of  the  persons  now  entitled  to  the  trust  property. 
The  result  is,  that  this  last  investment  is  disallowed,  and  that  the  trus- 
tee must  be  charged  with  the  amount  of  it,  to  wit :  $2,475,  and  with 
simple  interest  thereon  from  August  16,  1881,  aud  must  be  credited 
with  any  dividends  therefrom  which  he  has  received  and  paid  over, 
with  simple  interest  on  each,  from  the  time  each  dividend  was  received. 
The  decree  of  the  Probate  Court  must  be  modified  in  accordance 
with  this  opinion.  Decree  accordingly. 


CANN  V.  CANN. 

In  CnANCEnr,  befoke  Kay,  J.,  October  31,  1884. 

{Reported  in  33  Weekly  Reporter,  40] 

Adjourned  summons.  This  was  an  application  by  the  defendants 
to  vary  the  chief  clerk's  certificate,  whereby  a  sura  of  .£l.1.S  ll.s-.  id. 
had  been  disallowed. 

Kay,  .J.^  It  is  extremely  difficult  in  these  cases  to  know  where  to 
draw  the  line.  Here  there  is  an  estate  producing  £700  a  year.  A 
mortgage  of  £.000  is  paid  off,  and  the  trustees  pay  that  money  into  a 
bank  for  the  purpose  of  getting  anotlicr  mortgage.*  Tiu;  (juestion  is, 
whether  it  was  within  tlieir  powers  as  trustees  to  leave  that  sum  in  the 
bank  for  fourteen  months.  It  seems  to  me  that  that  was  too  long. 
If  after  six  montlis  they  could  not  get  a  mortgage  they  ought  to  have 
invested  in  Consols.  Without  attempting  to  draw  a  hard  and  fast 
line,  —  for  I  consider  that  eacii  of  these  cases  must  be  judged  on  its 
merits,  —  I  say  that  leaving  that  money  in  the  hank  for  fourtct'ii  months 
was  leaving  it  there  too  long.  The  moment  they  began  to  leave  the 
money  there  too  long  they  became  reaponKihlo  for  all  the  oonsoquences 
of  their  default;  and  tlicy  are  tlienifore  liable  for  tiie  £1L>M  which  has 
been  lost.      I  must  dismiss  the  Huunnons  with  costs.' 

*  Only  tho  opinion  of  the  court  is  pivon. — Kn. 

^  Tlif!  moiK'V  rciiiaitied  on  di-posit  from  M:iy,  IRCO,  to. July  ITitli,  IHVO,  wlion  tlio  hnuk 
failed.     'I'll';  loss  tlierehy  ofcawioiicil  :ini<iiinti->|  t<i  X13!^  I  l.i.  4'/. —  I'".ii. 

'  In  the  following  caHCMthe  trnstof,  h.ivinf^  nllowod  tluMiopoHil  in  fho  htink  to  nt-irni 
for  an  nnuHnally  long  time,  wa"*  rliarj^oil  with  thn  Iomh  orrawiimfd  hy  (In-  failnro  of  tho 
bank:  Moylcc.  Moylo,  2  HnBS.  K-  My.  710;  Hohdcn  i:  \\>Kl,.y,  U'.i  Mcav.  213;  HRrnoy 
V.  SaiindnrH,  Ifi  How.  .Vl.') ;   VVoodli-y' r.  H.-llcy,  I II  N.  Pa.  n«0. 

If  tli(!  anionnt  dppojiitcd  in  large,  it  xhuuld  lio  withdrawn  without  <lolay  and  invpntrd. 
Ashbiiry  ".  lieaslfy,  17  W.  R.  fi3«. 

So  if  afru.HtoP  irt  nndor  adnty  to  makf  initnfdiatn  paymont  of  ihi"  trii''t  fniid,  if  in  no 
longer  a.-quc.stion  nf  r'.i-nnablc   time.     Iln  loans  tho  fund  at  ili<'  l';iiik  r\t  1i!«  priil 
/  '  31     *     .1 

>-  Wi^/  '  •  ^     • 

/ 


^^U. 


482  IN   KE   ARGUELLO.  [CHAP.  V. 


In  re  ARGUELLO. 
In  the  Supreme  Court,  California,  January  14,  1893. 

[Reported  in  97  California  Reports,  196.] 

Belcher,  C.^  This  is  an  appeal  by  the  administrator  of  the  estate 
of  the  decedent  from  an  order  of  the  Superior  Court  of  San  Diego 
County  requiring  him  to  pay  to  the  creditors  of  the  estate  whose 
claims  had  been  duly  presented  and  allowed  certain  sums  of  money. 

The  sum  of  money  in  controversy  was  $4,846.b0,  which  was  received 
by  the  administrator  for  and  on  account  of  the  estate,  between  July  5, 
1891,  and  October  15,  1891,  and  deposited  by  him  in  the  California 
Savings  Bank,  in  the  city  of  San  Diego,  in  his  own  name. 

The  court  below  found  the  facts  to  be  as  follows  :  — 

"  That  at  the  time  said  funds  were  deposited  by  said  administrator 
in  said  California  Savings  Bank,  said  bank  was  reputed  to  be  and  was 
considered  a  safe  and  solvent  bank  and  place  of  deposit,  and  was  of 
good  credit  and  standing,  and  was  believed  by  said  administrator  to 
be  solvent  and  safe ;  that  said  deposit  was  made  in  the  individual 
name  "  of  the  administrator,  "  without  any  designation  or  indication 
of  his  representative  capacity,  but  said  administrator  had  no  other 
funds  or  account  with  said  bank,  and  deposited  such  with  that  par- 
ticular bank  for  the  express  purpose  of  keeping  the  same  separate 
from,  and  so  that  it  would  not  be  unnecessarily  mingled  with,  his  own 
property  or  individual  funds." 

"That  in  depositing  said  funds  in  said  California  Savings  Bank  as 
aforesaid,  said  administrator  acted  in  good  faith." 

"  That  on  the  twelfth  day  of  November,  1891,  said  California  Sav- 
ings Bank  became  suddenly,  unexpectedly,  and  wholly  insolvent,  sus- 

Darke  v.  Martyn,  1  Beav.  525  ;  Gongh  v.  Etty,  20  L.  T.  Rep.  358  ;  Lunham  v.  Brandell, 
27  L.  J.  Ch.  179;  Ricks  v.  Hroyles,  78  Ga.  610. 

But,  as  is  implied  in  the  principal  case,  a  trustee  having  funds  in  his  hands  not 
immediately  applicable  to  the  purposes  of  the  trust,  may  deposit  them  for  a  reasonable 
time  in  a  bank,  taking  care  to  have  the  credit  run  to  him  in  his  fiduciary  capacity, 
Atty-Gen.  v.  Randall,  21  Vin.  Ab.  .534 ;  Rowth  v.  Howell,  3  Ves.  Jr.  565 ;  Adams  v- 
Claxton,  6  Ves.  226;  France  v.  Woods,  Taml.  172;  Dorchester  r.  Effingham,  Taml. 
279;  Johnson  v.  Newton,  11  Hare,  160;  Wilks  i>.  Groom,  3  Drew.  584;  Fen  wick  v. 
Clarke,  4  D.  F.  &  J.  240  ;  Swinfen  v.  Swinfen,  29  Beav.  211;  Re  Marcou,  40  L.  J.  Ch. 
537;  In  re  Earl,  39  W.  R.  107;  Munnerlyn  v.  Augusta  Bank,  88  Ga.  333 ;  Norwood 
V.  Harness,  98  Ind.  134;  .Jacobus  v.  Jacobus,  37  N.  J.  Eq.  17 ;  People  v.  Faulkner,  107 
N.  Y.  477,  488;  Law's  E.st.,  144  Pa.  499;  Ramsey  v.  McGregor,  1  Cincin.  S.  C.  327; 
(^)dd  Fellows  v.  Ferson,  3  Oh.  C.  C.  84. 

The  deposit  may  or  may  not  draw  interest,  but  if  it  is  for  a  fixed  time,  it  becomes 
an  investment  upon  the  credit  of  the  bank  ;  and  as  such  an  investment  is  improper  the 
trustee  must  make  good  any  loss  by  reason  of  the  failure  of  the  bank.  Baskin  v. 
Baskin,  4  Lans.  90;  Frankenfield's  App.  127  Pa.  369,  n. ;  Baer's  App.,  127  Pa.  360; 
Law's  Est.,  144  Pa.  499  (semble). 

A  trustee  may  properly  remit  money  to  a  distance  through  the  agency  of  a  broker 
in  good  credit.     Knight  v.  Plymouth,  1  Dick.  120.  —  Ed. 

i  Only  the  opinion  of  the  court  is  given.  —  Ed.  v 


<i  t.  P.(*  /-t-'i  rr 


^  / 


^A. 


.•/,--^A 


SECT.  IV,]  IN   HE   ARGUELLO.  4S3 

pended  business,  and  has  not  been  able  to  pay  the  amount  so  deposited 
by  said  administrator  with  it,  or  any  part  thereof." 

"  That  said  administrator  has  been  guilty  of  no  negligence  or  want 
of  care  in  the  administration  of  said  estate,  except  that  he  deposited 
such  funds  in  the  California  Savings  Bank  in  his  individual  name, 
instead  of  in  his  representative  capacity,  or  iu  the  name  of  the 
estate." 

And  as  conclusions  of  law  the  court  found  that  the  administrator 
was  responsible  for  the  money  so  deposited  by  him,  and  that  he  must 
pay  it  over  to  the  creditors  of  the  estate. 

The  appellant  contended  that  an  administrator  is  only  required  to 
act  in  good  faith,  and  to  exercise  such  skill,  prudence,  and  diligence 
in  managing  the  affairs  of  the  estate  as  men  ordinarily  bestow  upon 
their  own  affairs ;  and  that  when  he  has,  iu  good  faith  and  with  rea- 
sonable care,  deposited  funds  of  the  estate  iu  bank,  which  have  beeu 
subsequently  lost  by  the  failure  of  tlie  bank,  he  will  not  be  hold  liable 
for  the  loss,  unless  he  has  wilfully  and  unnecessarily  mingled  the  trust 
property  with  his  own,  so  as  to  constitute  himself  in  appearance  its 
absolute  owner ;  and  hence  that,  under  the  facts  found  in  this  case, 
the  order  of  the  court  was  erroneous,  and  should  be  reversed. 

The  question  presented  has  many  times  been  before  the  courts  of 
England  and  of  this  country,  and  the  decisions  upon  it  have  been 
practically  unanimous,  and  to  the  same  effect  as  the  decision  of  the 
court  below  in  this  case. 

The  law  upon  the  subject  is  stated  in  Perry  on  Tnists,  sec.  113: 
"A  trustee  may  deposit  money  temporarily  in  some  responsible  bank 
or  banking-house;  and  if  he  acted  in  good  faith  and  with  tliseretion, 
and  deposited  the  money  to  a  trust  account,  he  will  not  be  liable  for 
its  loss,  .  .  .  but  he  will  be  liable  for  tlir  money  in  case  of  a  failure 
of  the  bank,  or  for  its  depreciation,  if  he  deposits  it  to  his  mm  credit^ 
and  not  to  the  Hcparate  account  of  the  trust  estati*."  And  airain,  in 
sec.  4G3  :  "  So  if  the  trustee  pays  tlie  nionry  into  a  bank  in  his  own 
name,  and  not  in  the  name  of  the  trust,  he  will  be  responsible  for  tho 
money  in  case  of  thi;  failure  of  the  bank." 

•    A  reference  to   a    few  of  the  numerous  cases  cited    will    l>e  sulli- 
cient.*  .   .   . 

But  whatever  may  be  tlic  rule  elsewhere,  tlu^  jippi-Uant  insists  that 
the  rule  in  this  State  is  declared  in  sec.  2236  of  the  Civil  Code,  and 
that  that  does  not  make  him  liable.  The  section  refcrretl  to  reads  as 
follows :  — 

1  Tho  learned  f'liiof  romiiiiHHinnor  lioroquotod  nt  gnrno  lonulh  from  rummnnwoalth 
V.  McAlister,  28  I'n.  4K0,  Willi.itiiH  c  WillitimH.  .')5  Win.'lOO,  ;iiiil  NiiIiikt  r.  Duinn,  108 
Ind.  500.  In  the  Willinins  vnna  l\u-  court  Hiiid:  "To  hold  tho  ndminiHlmlor  nnxwcr- 
ablo  in  thiHCa«c  Ih  uiidnnMfiliy  ;i  ^r(!.it  hanlHliiji ;  Imt  to  exoncraff  him  fnun  li.iliility 
is  to  onrourage  tho  mi.sm.inagi'm<.Mit  of  trimt  funds  and  to  open  tho  dour""  t>i  fraudu 
fDnumcrahle  against  those  whoso  ago  and  woaknoss  entitle  them  to  the  most  rigid 
protection  of  tho  law.  'Iho  rnlo,  thorcf<  to,  sli"uM  not  lio  slackened,  oven  if  the  question 
were  a  new  one,  much  lt,:'»  in  view  of  the  aulhoritiu.i  cited."  —  Ed. 


484  EX   PARTE   CATllOllPE.  [CIIAI'.  V. 

''  Sec.  2236.  A  trustee  who  wilfully  and  unnecessarily  mingles  the 
trust  property  with  his  own,  so  as  to  constitute  himself  in  appearance 
its  absolute  owner,  is  liable  for  its  safety  at  all  events." 

"We  do  not  think  this  section  was  intended  to  change  the  rule  gen- 
erally prevailing,  or  to  limit  liability  under  it;  on  the  contrary,  the 
section  seems  to  be  in  entire  accord  with  the  general  rule,  and  in  effect 
to  declare  it  in  unmistakable  terms. 

In  our  opinion  the  order  appealed  from  should  be  affirmed. 

Vanclief,  C,  and  Haynes,  C,  concurred. 

For  the  reasons  given  in  the  foregoing  opinion,  the  order  appealed 
from  is  affirmed.^ 

Fateksox,  J.,  Garoutte,  J.,  Harrison,  J. 


i 


t 


Ex   PARTE   CATHORPE. 
In  Chancery,  before  Lord  Tiicrlow,  C,  May  28,  1785. 

[Reported  in  1  Cox,  Equiti/  Cases,  182.] 

Upon  an  application  to  lay  out  on  a  mortgage  a  sum  of  £3,000  in 
the  hands  of  the  Accountant  General,  belonging  to  the  lunatic's  estate, 


\" .  1  Walker  v.  Symonds,  3  Sw.  1,  66  ;  Ditmar  v.  Boyle,  53  Ala.  169  ;  Harward  v.  Robin- 
sou,  14  111.  Ap.  .560  ;  Gilbert  v.  Welsch,  7,'j  Iiul.  557  ;  State  v.  Greeiisdale,106  Ind.  364 
(criticising  Richardson  v.  State,  55  Ind.  381);  Naltner  v.  Dolau,  108  Ind.  500; 
Jenkins  v.  Walker,  8  Gill  &  J.  218;  Coffin  v.  Bramlitt,  42  Miss.  194;  Knowlton  v. 
Bradlev,  17  N.  H.  458  ;  Baskin  v.  Baskin,  4  Lans.  90;  Suinmersi;.  Keyuolds,  95  N.  Ca. 
404;  Morris  v.  Wallace,  3  Barr,  319  ;  Draper  v.  Joiner,  9  Iluniph.  612;  Lyell  v.  Ham- 
mond, 2  Lea,  378, 390  (semble) ;  Williams  v.  Williams,  55  Wis.  300  ;  Book  v.  Wilkinson, 
78  Wis.  652  Accord. 

Atterberry  v.  McDuffee,  31  Mo.  Ap.  603  ;  (see  State  v.  lioeper,  82  Mo.  57) ;  Parsley 
V.  Martin,  77  Va.  376 —  Contra. 

A  fortiori  the  tru.stee  must  answer  for  the  solvency  of  the  bank,  where  the  trust 
money  is  blended  with  the  trustee's  individual  account.  Wren  v.  Kirton,  11  Ves.  377  • 
■  Fletcher  v.  Walker,  3  Mad.  73  (semhle) ;  Ma.ssey  v.  Banner,  4  Mad.  413,  1  J.  &  W.  241' 
247  ;  Robinson  v.  Ward,  2  C.  &  P.  59  ;  McDonnell  v.  Harding,  7  Sim.  178  ;  Pennell  v. 
Deffell,  4  1).  M.  &  G.  372,  392  ;  Noble  v.  Hammond,  129  U.  S.  65;  De  Jarnette  v. 
De  Jarnette,  41  Ala.  708 ;  Henderson  v.  Henderson,  58  Ala.  582  ;  Webster  v.  Pierce,  35 
111.  158,  163;  Drovers'  Bank  v.  O'Hare,  18  111.  Ap.  182;  Clay  v.  Clay,  3  Met.   (Ky.) 

"^    548;    Cartnell  v.  Allard,  7  Bush,  482;  Norris  v.  Hero,  22  La.  An.  605;  Coleman  v. 

^  Lipscomb,  18  Mo.  Ap.  443;  .Jacobus  v.  .Licobu.s,  37  N.J.  Eij.  17,  20;  Re.  Stafford, 
11  Barb.  353;  Prescott's  Estate,  1  Tuck.  430;  Shaw  v.  Banman,  34  Oh.  St.  25; 
Morris  i'.  Wallace,  3  Barr,  319  ;  Stanley's  App.  8  Barr,  431  ;  McAllister  ?;.  Commw.,  30 
Pa.  536,28  Pa.  480  ;  Law's  Est.,  144  Pa.  499,  .506  ;  Allen  v.  Leach  (Pa.  1894),  29  Atl.  R. 
1050;  Mason  v.  Whitthorne,  2  Cold.  242;  In  re  Hodges  (Vermont,  1894)  28  Atl.  R. 
663  (overruling  Barney  v.  Parsons,  54  Vt.  623)  ;  Vaiden  v.  Stubblefield,  28  Grat.  153. 
But  see  contra.  Crane  r.  Moses,  13  S.  Ca.  561. 

If  a  tru.«tee  mixes  specific  money  of  the  trust  fund  with  his  own  coins  or  bills,  and 
some  of  the  mixed  money  is  stolen,  the  loss  will  fall  on  the  trustee,  unless  he  can 
identify  his  own  money  among  the  coins  or  bills  remaining.  Bartlett  v.  Hamilton,  46 
Me.  435  ;  Shipp  v.  Hetlrick,  63  N.  C.  329.  —  Ed.  » 


SECT.  IV.]  EX    PARTE    CATHORPE.  485 

Madocks  produced  several  orders  of  the  same  nature,  which  had  been 
made  iu  this  very  lunacy.  But  the  Loud  Chaxcellok  said,  that  although 
he  was  perfectly  convinced,  by  what  was  stated  to  him,  that  this 
security  was  perfectly  good,  yet  he  could  not  permit  such  a  precedent 
to  be  made ;  aud  that  he  was  aware  that  in  former  times  the  court 
had  laid  out  the  money  not  only  of  lunatics  but  of  infants  in  this 
manner;  but  in  latter  times  the  court  had  considered  it  as  improper  to 
invest  any  part  of  the  lunatic's  estate  upon  a  private  security,  and  it 
would  be  a  dangerous  precedent  to  brealc  in  upon  that  rule ;  and  he 
therefore  directed  the  money  to  be  laid  out  iu  the  8  per  cent  Bank 
annuities.^ 

First  Mortgages  of  TJeal  Estate.  — Lord  Ilarcourt  in  Brow-n  v.  Litton,  1  P. 
Wms.  140;  Lord  liaruwicke  iu  Knight  v.  Th  mouth,  1  Dick.  120,  12G  ;  aud  Lord 
Alvauley  in  Pocoek  v.  Redingtou,  5  Ves.  794,  800,  tiiought  trust  fnmis  might  properly 
be  invested  in  first  mortgages  of  laud.  But  Lord  Tliurlow's  view  to  tlie  contrary  was 
generally  approved  in  England.  Widdowsou  r.  Duck,  2  Mer.  41)4  ;  A'e  Fust,  1  Coop,  t- 
Cottenham,  157  n.  (c) ;  Norbury  v.  Norbury,  4  Mad.  121 ;  Ex  parte  Ellice,  Jac.  234  ; 
Ridgeway,  1  Hog.  309;  Ex  parte  Johnson,  1  Moll.  128;  7iV  Franklyn,  1  De  G.  &  Sm. 
528;  Berry  u.  Marriott,  2  De  G.  &  Sm.  491  ;  Kaby  v.  Kidelialgli,  7  1).  M.  &  G.  104. 
By  Lord  St.  Leonards'  Act,  22  &  23  Vict.  c.  35,  §  32,  first  mortgages  ou  real  estate 
■were  made  legitimate  trust  investments.  In  this  country  the  same  rule  has  generally 
been  made  without  a  statute.  Hut  a  coutril)utory  mortgage  is  not  a  ))roper  investment 
under  the  Euglish  statute.  Webb  v.  Jrmas,  39  Ch.  I).  660.  Tiie  mortgage  of  the 
franchise  and  tracks  of  ahorse  railroad  was  lield  to  be  improper  for  an  investmeut  in 
Judd  V.  Williams,  2  Dem.  404. 

Second  Mortgages.  —  In  several  jurisdictions  it  is  a  breach  of  trust  to  invest  in 
second  mortgages.  Gen.  St.  Conn.  (1888)  §  495;  Maddocks  i;.  Moultnn,  S4  Me.  545; 
Gilmore  v.  Tuttle,  .32  N.  J.  Eq.  611,  36  N.  J.  Eq.  617  ;  Porter  f.  Woodruff,  36  N.  J.  Kq. 
174  ;  Savage  v.  Gould,  60  How.  Pr.  234  ;  Re  Petrie,  5  Dem.  352  ;  Singleton  v.  Lowndes, 
9  S.  Ca.  465. 

There  are  dirin  to  the  same  effect  iu  Thomson  i\  Christie,  1  Mac(|.  236,  238 ;  Drosier 
r.  Brcrcton,  15  Heav.  221  ;  Lockliart  r.  l{.illy,  1  DefJ.  &  .1.  401,  476  ;  Shcm.ld  Society 
V.  Aizlewooii,  44  Cii.  D.  412,  459.  Hut  in  Want  r.  Campain  (Ch.  1).  IS93)  94  Law 
Times,  385  (see  also  Norris  v.  Wright,  14  Beav.  291,  308)  it  wiis  said  that  iuvestmeut 
in  second  mortgages  w;w  not  ab.suliitfly  )inihibi(ed.  but  that  tlu^  Iruslce  had  the 
burden  of  overccjming  tiie  ])resumpti<in  against  the  litn<'.>*s  of  such  au  invcslmont. 
See,  to  the  same  effect.  Waring  v.  Waring,  3  Ir.  Ch.  .331,  337  ;  Shuoy  i-.  Laita,  90 
Ind.  I3G;  Whitney  v.  Marline,  88  N.  V.  .5.35,  .5.39,  .540;  King  v.  M.-ickdlar.  109  N.  Y. 
215,  221. 

In  lie  Blauvelt's  Est.  20N.  Y.  Sup.  119  and  in  Jack's  Ap.,  94  Pa.  369,  investments  in 
second  mortgages  were  sanctioned.  See  also  Hogarl  v.  Jackson,  4  Fdw.  718;  Lechh'r's 
Ap.  21   W.  N.  C.  (I'a.)  .505. 

EyuiTAiu.K  MoKKiAGKs.  —  A  trustee  is  not  [lerinilted  to  invest  in  e(|uitalile  mort- 
gages.    Webb  V.  Lcdsam,  1  K.  &  J.  385  ;  Swallidd  r.  Nelson,  W.  N.  (1H76)  255, 

J>KASEiioi,ii  MoitTGAGKH. —  Investment  u|)on  tlie  security  of  Icnseliolds  is  a  brea<li 
of  trust.  WyJitt  v.  Sb<rratt,  3  Hrav.  49K  ;  Fyler  i:  Fyler,  3  Hi-av.  551  ;  Fuller  v. 
Knight,  6  Heav.  205;  In  rr  Chounell,  8  (  h.  Div.  492;  In  rr  Boyd.  14  Ch  Div.  626; 
unless  the  leasehold.M  are  for  a  long  term  of  yearn  at  a  nominal  rent.  Macleixl  i'. 
Anneslfv,  16  Beav.  600;  In  re  Cbfun<ll.  8  Ch.  Div.  492. 

Le.XHilioM  mortg.'iges  were  not  fornnTly  "  n-al  eemritieM."  In  rr  Boyd,  14  Ch.  D.  626  ; 
Leigh  r.  Leigh,  55  L.  T.  Kep.  6.34  ;  but  by  'Jrusteo  Act,  1888,  51,  .52  Vict.  c.  59.  §  9. 
a  power  to  invent  in  re.il  HCcuritieHaiitborizeM  an  inviMlment  upon  mortgage  of  property 
held  for  an  une.xpired  term  of  not  Ies,s  tiian  200  yi-iirs,  and  at  a  rent  not  greater  than 
one  shilling  a  year.    See  also  Trustee  Act  1893,  c.  53.  §  5. 


4S6  EX    PARTE   CATIIOKrE,  [CIIAr.  V. 

The  rrnciiASE  of  Land  ou  Ch.vttki.s  with  the  trust  funds  is  a  breach  of  trust 
unless  sjieoially  authorized  by  tiie  terms  of  the  trust.  Ousek'V  i-.  Aiistrutlier,  10  Beav. 
452,  4r)6;  Oamjihell  r.  Miller,  38  Ga.  304  (chattels);  Williams  r.  Williams,  35  N.  J. 
Eq.  100;  Eckford  v.  De  Kay,  8  Paige,  89;  Jiaker  v.  Dishrow,  18  Iluii,  29,  3  Kedf.  348 
{cestui  que.  trust  may  take  the  estate  with  jirotits,  or  jjriucijinl  and  interest.  ]hit  m 
estimating  j)rofits,  the  whole  series  of  transactions  must  he  considered) ;  Koyer's  A])))., 
11  I'a.  36  (compare  Bonsall's  Ap.,  1  Ixawle,  273  ;  Bellington's  Ap.,  3  Ilawle,  55); 
Morton  v.  Adams,  1  Strob.  Eq.  72,  76;  Mathews  v.  Ileyward,  2  S.  C.  n.  8.  239  (but 
see  Ex  parte  Calmes,  1  Hill,  Ch.  112)  ;  Kyder  v.  Sisson,  7  R.  I.  341  (chattels). 

Confederate  Eoxus.  —  Investment  iu  Confederate  bouds  was  lawful  during  the 
existence  of  the  Confederacy.  McClure  y.  Stull,  14  Rich.  Eq.  105  (conijiare  Snelliiig 
V.  McCreary,  14  Rich.  Eq.  291  ;  Mayer  r.  Mordecai,  1  S.  Ca.  383  ;  Creightou  v.  I'riugle, 
3  S.  C.  77)  ;"  Waller  v.  Cattell,  83  Va.  200. 

Foreign  Investments.  —  As  a  rule  investments  in  property  without  the  jurisdiction 
of  the  trustees  are  not  proper  ;  but  they  will  be  sanctioned  in  special  cases  if  in  confor- 
mity with  the  object  of  the  trust.  Amory  v.  Green,  13  All.  413  (strmble)  (Dwelling- 
house  case) ;  Orniiston  v.  Olcott,  84  N.  Y.  339 ;  lie  Denton,  103  N.  Y.  607 ;  Re 
Myers,  131  N.  Y.  409  ;  Rush's  Est.,  12  Pa.  375,  378  (semble) ;  Ex  parte  Copeland, 
Rice,  Eq.  69.  —  Ed. 


State  Statutes  Regulating  Investments.  —  Deering's  Civil  Code,  California 
(1886),  §  2261.  A  trustee  must  invest  the  trust  money  "iu  such  manner  as  to  afford 
reasonable  security  and  interest  for  the  same." 

1  Mills,  Ann.  St.  Colorado  (1891),  p.  248,  §  359.  "No  act  of  the  General  Assembly 
shall  authorize  the  investment  of  trust  funds  ...  in  the  bonds  or  stock  of  any 
private  corporation." 

Gen.  Sts.  Conn.  (1888),  §  495.  "Trust  funds  .  .  .  may  be  loaned  on  the  security  of 
mortgages  on  unencumbered  real  estate  in  this  State,  double  in  value  the  amount 
loaned,  or  may  be  invested  in  such  mortgages,  or  in  the  bonds  or  loans  of  this  State,  or 
of  any  to^vn,  city,  or  borough  of  this  State,  or  iu  any  bonds,  stocks,  or  other  securities 
■which  the  savings  banks  in  this  State  are  or  may  be  authorized  by  law  to  invest  in,  or 
may  be  deposited  in  savings  banks  incorporated  by  this  State." 

Rev.  St.  Fla.  (1892),  §  2189.  Trustee  is  allowed  todepo.sit  trust  funds  with  a  banking 
company  organized  under  the  chapter  in  the  Revised  Statutes  relating  to  banking 
companies,  or  to  invest  the  same  in  its  capital  stock. 

Georgia  Code  (1873),  §  2330.  Trust  funds  may  be  invested  in  "stocks,  bonds,  or 
other  securities  issued  by  this  State.  .  .  .  Any  other  investments  must  be  made  under 
an  order  of  the  Superior  Court,  ...  or  else  at  the  risk  of  the  trustee." 

Ky.  St.  (1894),  §  4706.  Trustees  may  invest  in  "real  estate,  mortgage  notes  or 
bonds,  or  in  such  other  interest-bearing  or  dividend-paying  securities  as  are  regarded 
by  prudent  business  men  as  safe  investments,  and  to  make  loans  with  such  securities 
as  collateral ;  but  such  funds  shall  not  be  invested  in  the  bonds  or  securities  of  any 
railroad,  or  other  corporation,  unless  such  railroad,  or  other  corporation  has  been  in 
operation  more  than  ten  years,  and,  during  that  time,  has  not  defaulted  in  the 
payment  of  principal  or  interest  on  its  bonded  debt,  or  be  invested  in  the  bonds  of  a 
county,  district,  town,  or  city,  that,  within  ten  years,  has  defaulted  in  the  payment  of 
the  interest  or  principal  of  its  bonded  debt." 

I  Rev.  St.  Ohio  (1890),  §6413.  Investments  must  be  in  "  the  certificates  of  this  State, 
or  of  the  United  States,  or  in  such  other  security  as  may  be  approved  by  the  court 
havmg  control  of  the  administration  of  the  trust." 

1  Brightly's  Purdon's  Dig.  (12th  Ed.),  1894,  p.  35,  §  69.  "No  Act  of  the  General 
Assembly  shall  authorize  the  investment  of  tru.st  funds  ...  in  the  bonds  or  stocks  of 
any  private  corporation." 

New  Hampshire,  Pub.  St.  553,  §11,  505,  §  9.  Trustees  may  invest  in  "  notes  secured 
by  mortgage  of  real  estate  at  least  double  in  value  of  the  notes,  in  some  incorporated 


SECT.  IV.]  IN   RE   SALMON.  487 


In  re  salmon.     PRIEST   v.   UPPLEBY. 
In  tue  Court  of  Appea.l,  Juke  19,  1889. 
[Reported  in  42  Chancery  Division,  351.] 

Cotton,  L.  J.^  This  is  an  appeal  by  the  plaintiff  from  a  decision  of 
Mr.  Justice  Kekewich  tlisijjissiiig  an  action  brought  against  Uppleb}', 
a  retired  trustee  of  the  will  of  Eliza  Salmon,  to  make  him  responsible 
for  an  improper  investment. 

There  are  two  questions  to  be  considered.  The  first  is,  whether  the 
investment  in  question  was  wrongful.  It  was  within  the  terms  of  the 
trust,  for  it  was  an  investinuut  on  mortgage  of  a  freehold  estate.  In 
one  sense,  therefore,  it  was  in  accordance  with  the  trusts,  and  if  the 
trustee  took  due  care  as  to  its  sufficiency  there  would  be  no  breach  of 
trust,  and  nobody  could  complain,  though  it  ultimately  proved  insuf- 
ficient. The  case  differs  from  that  of  an  investment  not  within  the 
terms  of  the  instrument,  wliich  is  necessarily  a  breach  of  trust,  so  that 
if  any  loss  occurs  the  trustees  must  be  liable  for  it.  The  question  here 
is,  whether  Uppleby  took  proper  care  in  seeing  to  the  sufficiency  of 
the  security. 

Now  as  regards  the  rule  which  has  been  so  much  discussed,  as  to 
the  amount  which  may  be  lent  on  a  given  security,  the  law  is  thus 
summed-up  in  Learoyd  v.  Whiteley*:  "As  a  general  rule  the  law 
requires  of  a  trustee  no  higher  degree  of  diligence  in  the  execution  of 
his  otlice  than  a  man  of  ordinary  prudence  would  exercise  in  the 
management  of  his  own  private  affairs.  Yet  he  is  not  allowed  the 
same  discretion  in  investing  the  moneys  of  the  trust  as  if  he  were  a 
person  sui  juris  dealing  with  his  own  estate.  Business  men  of 
ordinary  prudence  may,  and  frequently  do,  select  investntents  which 
are  more  or  less  of  a  speculative  character;  but  it  is  thi-  duty  of  a 
trustee  to  confine  himself  to  the  class  of  investments  whicli  are  i)er- 
mitted  by  the  trust,  and  likewise  to  avoid  all  investments  of  that  class 
which  are  attended  with  hazard.  So,  so  long  as  he  acts  in  the  honest 
observance  of  these  limitations,  the  general  rule  already  stated  will 
apply.  The  courts  of  e(|uity  in  England  have  indicated  and  given 
etfect  to  certain  general  principles  for  the  guidance  of  trustees  in  lend- 
ing money  upon  the  security  of  real  estate.  Thus  it  has  been  laid 
down  that  in  the  case  of  ordinary  agricultural  land  the  margin  ought 
not  to  be  less  than  one-third  of  its  value ;   whereas  in  cases  where  the 

.miviiips  b.-iiik  in  tills  Statf>,  or  in  tho  hon<l«  orloatiN  of  ihiH  Stnto,  of  noino  town,  citv,  or 
county  of  this  Kt.ito,  or  of  tho  ITnitfil  StatfH,  .ind  in  no  other  way." 

TcnncHHoo  Codo  (1H84),  §  44I'l.  TniHtpcs  .ire  authorized  to  in vost  in  tlio  "  puMic 
storks  or  bonds  of  tlio  T'nited  States,  and  mnkc  rejxirt  to  tlip  county  eonrt  .  .  .  unless 
another  modn  of  investment  is  roi|uired  "  hy  the  creator  of  the  trust.  —  V.u. 

■  Only  tho  opinion  of  Cotton,  L.  J.,  ujion  tho  propriety  of  tho  iuvcstniont  ia 
given.  —  En. 

a  12  App.  Cas.  727,  733. 


488  AKNOULD  V.   GlilNSTEAD.  [CHAP.  V. 

subject  of  the  security  tlerivos  its  value  from  buiUliugs  erected  upon 
the  hind,  or  its  use  for  trade  purposes,  the  margin  ought  not  to  be  less 
than  one-half.  1  do  not  thiuli  these  have  been  laid  down  as  hard  and 
fast  limits  up  to  which  trustees  will  be  invariably  safe,  and  beyond 
which  they  can  never  be  in  safety  to  lend,  but  as  indicating  the  lowest 
margins  which  in  ordinary  circumstances  a  careful  investor  of  trust 
funds  ought  to  accept."^  These  rules  are  tliere  recognized,  though 
thej'  have  been  impeached  by  Mr.  Warmington  and  Mr.  Wood.  In 
the  present  case  the  value  of  the  property  was  mainly  derived  from 
buildings.  I  do  not  think  that  the  valuation  of  the  property  has  been 
successfully  impeached.  We  must  take  the  property  as  having  been 
worth  £l7oO.  The  trustees  lent  £1300  upon  it.  Now,  we  must  have 
regard  not  only  to  the  value,  but  to  the  nature  of  the  property.  It 
consisted  of  small  houses  let  at  weekly  rents,  and  we  know  the  class 
of  tenants  likely  to  be  attracted  by  cottage  property  in  Hull.  It  was 
certainly  not  prudent  to  lend  to  this  extent  upon  property  the  value 
of  which  depended  on  laborers'  houses  being  wanted  in  that  part  of 
Hull.  The  investment,  therefore,  was  a  breach  of  trust  as  having 
been  made  improvidently.^ 


ARNOULD   V.   GRINSTEAD. 
In  Chancery,  before  Sir  James  Bacon,  V.  C,  November  25,  1872. 

[Reported inWeekly  Notes  (1872),  216.] 

Edward  Stanley,  by  his  will,  dated  the  15th  of  January,  1861, 
direeted  that  "  all  my  personal  property  invested  in  government  or 
other  securities,  in  bonds  or  shares,  of  whatever  nature  and  kind,  be 
held  in  the  same  or  the  like  investments,  by  and  in  the  name  of  my 
wife,  Catherine  Stanley,  my  son,  R.  R.  P.  Stanley,  and  G.  Burrows, 
M.  D.,  whom  I  appoint  to  be  my  executrix  and  executors,"  upon  trusts 
for  the  benefit  of  his  daughters  and  their  children. 

1  Godfrey  v.  Faulkner,  23  Ch.  D.  483 ;  Re  Pearson,  51  L.  T.  Rep.  692  ;  Re  Blauvelt, 
20  N.  Y.  Sup.  119  Accord.  —  Ed. 

2  For  want  of  a  sufficient  margin  investments  upon  mortgage  were  adjudged  im- 
proper in  the  following  cases :  Stickney  v.  Sewell,  1  M.  &  Cr.  8 ;  Norris  v.  Wright,  14 
Beav.  291;  Macleod  v.  Annesley,  16  Beav.  600;  Stretton  v.  Ashmall,  3  Drew.  9  ; 
Ingle  V.  Partridge,  34  Beav.  411  ;  Budge  v.  Gummow,  7  Ch.  719;  Hoey  v.  Green,  W. 
N.  (1884)  236  ;  Fry  v.  Tapson,  28  Ch.  D.  268  ;  Smethurst  v.  Hastings,  30  Ch.  D.  490  ; 
Walcott  V.  Lyons,"  54  L.  T.  Rep.  786 ;  Re  Olive,  34  Ch.  D.  70  ;  Learoyd  v.  Whiteley,  12 
App.  Cas.  727,  33  Ch.  Div.  247, 32  Ch.  D.  196  ;  Re  Partington,  57  L.  T.  Rep.  654 ;  Knox 
i;.  Mackinnon,  13  App.  Ca.s.  753  ;  Rae  v.  Meek,  14  App.  Cas.  558 ;  In  re  Somerset,  '94,  1 
Ch.  231  ;  Cardweli,  55  Cal.  137  ;  Craven's  case,  43  N.  J.  Eq.  416  ;  Bogart  v.  Jackson,  4 
Edw.  718;  ^e  Blauvelt,  20  N.  Y.  Sup.  119  ;  Girard  Go's.  Ap.,  13  W.  N.  C.  (Pa.)  367; 
Lechler's  App.,  21  W.  N.  C.  (Pa.)  505. 

See  also  Trustee  Act,  1888,  §  4.  and  Trustee  Act,  1893,  §  8.  —  Ed. 


SECT.  IV.]  BROWN    V.    GELLATLY.  489 

The  personal  property  of  the  testator  was  invested  in  Victoria 
Government  Bonds,  Brazilian  and  Russian  Bonds,  Indian  and  English 
Railway  Stock,  East  India  Stock,  and  the  new  3  per  cents;  these 
investments  having  been  made  by  the  testator  himself. 

The  question  was,  whether  the  trustees  were  justified  in  retaining 
the  trust  funds  upon  these  investments. 

Amphlett,  Q.  C,  and  Naldo7i,  for  the  plaintiffs,  the  trustees. 

Eddie,  Q.  C,  and  E.  Cutler,  for  Mr.  and  Mrs.  Grinstead,  tenants 
for  life  of  the  fund. 

SvKinston,  Q.  C,  and  W.  E.  Fisher,  for  persons  intrusted  in  re- 
mainder, contended  that  the  securities,  most  of  which  were  payable  to 
bearer,  were  unauthorized  and  unsafe  (no  one  being  legally  respon- 
sible for  their  custody),  and  that  the  trustees  were  bound  to  convert 
them  into  3  per  cents,  or  show  some  investment  of  equal  security. 

The  Vice  Chakcellor  said  that  the  securities  on  which  the  trust 
funds  were  invested  could  not  be  altered  without  violating  the  plain 
and  positive  direction  of  the  will,  and  accordingly  held  that  the  invest- 
ments were  proper  investments,  and  within  the  meaning  of  the  will.' 


BROWN  V.    GELLATLY. 
In  Chancery,  before  Lord  Cairns,  L.  J.,  August  5,  1867. 

[Reported  in  Law  Reporter,  2  Chancery  Appeals,  7 51. J 

This  was  an  appeal  from  the  Master  of  the  Rolls. 

Duncan  Dunbar,  by  his  will,  dated  the  13th  July,  1859,  left  all  his 
property,  personal  or  freehold,  of  whatever  description,  in  trust,  to 
William  Smith  Brown  and  Eilward  Gellatly,  giving  them  full  power, 
except  as  thereinafter  provided,  to  realize  the  same  wlu-n  and  in  such 
manner  as  they  niigljt  see  fit  without  beiug  personally  responsiljle  for 
such  realization,  and  "to  sail  my  sliips  for  the  benefit  of  my  estate 
until  they  can  be  satisfactorily  sold  without  being  r('sp<nisibk'  for  any 
loss  on  any  voyage."  The  testator  be(|Ufatii('d  various  legacies  upon 
various  trusts ;  and  he  bequeathed  the  residue  of  his  estate  in  ct'rtain 

»  Forb*?8  V.  RoHP,  2  Bm.  C.  C.  4'JO.  2  dtx.  11.3  8.  c. ;  Hol.iiiHoii  r.  U<.liins<in,  I  1).  .\l. 
&  G.  247  ;  Paddon  v.  Hnhinson,  7  I).  M.  &  O.  .'>6.3  ;  r<>nfl«r<lino  i'.  C<>nst<nlino,  .11 
I'.oav.  ,3.30  ;  I'ickanl  v.  Amlfrson.  13  Kq.  G08/lm>n/. 

When  there  \n  a  <lirection  or  "Iiity  to  convert  the  truHl  fuml  into  wvi  Hcrnrifics,  tlio 
conversion  mu.xt  Ik5  ma'lo  within  a  ro;u*onalil<.'  tinu',  which,  a.-*  a  rule,  incann  within 
one  year.  Tlie  trustee  w.oh  hrdil  liaMe  fur  nnre.'won.'ililc  ilclay  in  Hate  v.  Hooper,  !»  1). 
M.  &  G.  .338;  HnfrheH  v.  .<^inipHon,  22  Heav.  IHl  ;  fJrayhnrn  r.  ClarkHon,  3  Ch.  fin.'.; 
Sculthorpe  v.  Tipper,  13  Ef|.  232  ;  GainHhorough  v.  Watronihe  Co.,  .^4  L.  J.  Ch.  9;»1  ; 
Heir.'t  IliildinKh  v.  \\\<\i\\u^h,  12  Ap.  C'aH.  624.  If.  however,  the  condition  of  the 
market  i.s  Huch  a,s  to  justify  delay,  the  trnsteo  who  acts  in  good  faith  will  not  ho 
charged,  if  he  docs  not  effect  the  conversion  within  a  year.  Buxton  i'.  Buxton,  1  M.  & 
Cr.  80;  .Marsden  i-.  Kent,  .5  Cli   T)iv.  598.  —  Ed. 


4'JO  BROWN   V.    GELLATLY.  [CHAP.  V. 

shares  to  teuauls  for  life  aud  rcmaiiKleriiieu,  and  he  gave  to  his  execu 
lors  "  full  power  to  invest  at  their  discretion,  or  allow  to  remain  as  at 
present  invested,  all  my  funds  in  Government  and  Colonial  Govern- 
ment [Securities,  Guaranteed  Railway  Stock  and  Debentures,  East  In- 
dia Bonds  aud  Stock,  Marine  Insurance  Shares,  and  Shares  in  the 
London  Cliartered  Bank. 

The  testator  was  a  large  shipowner,  and  at  the  time  of  his  death  he 
was  possessed  of  ships  to  the  value  of  upwards  of  £300,000.  A  large 
part  of  his  estate  also  consisted  of  shares  in  public  companies  and  the 
bonds  of  colonial  governments.  Some  of  these  investments  came 
within  the  terms  of  the  above  clause,  authorizing  the  executors  to  al- 
low them  to  remain  in  their  then  state  of  investment,  and  others  were 
not  comprised  in  the  terms  of  that  clause. 

A  question  arose  whether  the  tenants  for  life  of  the  residue  were 
entitled  to  the  profits  of  the  testator's  ships  until  sale  as  income  of  the 
residue,  or  -whether  those  profits  were  to  be  treated  as  capital.  A 
similar  question  arose  with  respect  to  the  income  of  the  other  securi- 
ties upon  which  the  testator's  property  was  invested.^ 

Lord  Cairns,  L.  J.  There  are  thi-ee  questions  in  the  case  :  the  first, 
as  to  the  ships ;  the  second,  as  to  what  I  will  term  the  authorized  secu- 
rities ;  and  the  third,  as  to  the  securities  which  are  not  authorized  by 
the  will. 

With  regard  to  the  ships,  I  think  that  the  case  of  Green  v.  Britten,'^ 
does  not  apply.  In  Green  v.  Britten  there  was  an  absolute  prohibition 
against  converting  the  ships  for  seven  years,  except  in  an  event  which 
did  not  happen,  and  the  court,  resting  upon  the  prohibition,  held  that 
it  was  a  sufficient  warrant  for  giving  to  the  tenant  for  life  the  income 
which  those  ships  earned  during  the  seven  years.  It  is  not  necessary 
,iere  to  consider  whether  that  was  a  correct  construction  or  not ;  it  is 
enough  to  say  that  the  principle  on  which  the  court  proceeded  does 
not  apply  to  the  present  case,  in  which  we  find  no  indication  whatever 
of  an  intention  that  the  ships  were  to  remain  unconverted  for  any  spe- 
cific time.  The  testator,  who  had  been  engaged  in  the  shipping  busi- 
ness, knew  perfectly  well,  and  shows  that  he  knew,  that  some  time 
would  necessarily  be  taken  in  converting  the  ships,  and  therefore  he 
very  wisely  pro\ided  that  until  they  were  sold  the  executors  should 
have  a  power  which  otherwise  they  would  not  have  possessed,  namely, 
the  power  to  sail  the  ships  for  the  purpose  of  making  profit,  but  in 
'j;iving  that  power,  he  does  not  give  it  as  a  power  to  be  exercised  for 
the  benefit  of  the  tenant  for  life  as  against  the  parties  in  remainder,  or 
for  the  benefit  of  the  parties  in  remainder  as  against  the  interest  of  the 
tenant  for  life,  but  says  that  it  is  to  be  exercised  for  the  benefit  of  the 
•'State,  meaning,  as  I  apprehend,  for  the  benefit  of  the  estate  generally, 
without  disarranging  the  equities  between  the  successive  takers. 

1  The  statement  of  facts  is  taken  from  15  W.  R.  1188.  The  arguments  of  counsel 
are  omitted.  —  Ed. 

2  1  D.  J.  &  S.  649. 


SECT.  lY.]  BROWN    V.    GELLATLY.  491 

I  think,  therefore,  that  with  regard  to  the  ships,  the  testator  put 
them  simply  iu  the  position  of  property  which  was  to  be  converted 
cautiousl}',  and  in  propei"  time,  and  as  to  which  there  was  no  breach 
of  trust  in  the  executors  dehiying  to  convert  it,  but  which,  when  con- 
verted, was  to  be  invested,  and  when  invested,  to  be  enjoj'ed  as  the 
residue  of  his  estate. 

In  that  state  of  things,  it  seems  to  me  that  the  case  falls  exactly 
within  the  third  division  pointed  out  by  Sir  James  Parker  iu  the  cast 
of  Meyer  v.  Simonsen,^  and  that  a  value  must  be  set  upon  the  shipt: 
as  at  the  death  of  the  testator,  and  the  tenant  for  life  must  have  4 
per  cent  on  such  value,  and  the  residue  of  the  profits  must  of  course 
be  invested,  and  become  part  of  the  estate.'^ 

Then,  secondly,  as  to  the  authorized  securities.  By  those,  I  moan  the 
securities  which  are  specified  in  the  last  clause  of  the  will.  Government 
and  Colonial  Government  Securities,  Guaranteed  Railway  Stock  and 
Debentures,  East  India  Bonds  and  Stock,  Marine  Insurance  Shares,  and 
Shares  in  the  London  Chartered  Bank.  The  first  thirteen  items  in  the 
list  of  securities  contained  in  the  statement  submitted  to  the  ^Master  of 
the  Rolls,  are  admitted  to  come  under  one  or  other  of  those  descrip 
tions.  In  my  opinion,  according  to  the  construction  of  the  will,  the 
executors  have  full  power  to  retain  upon  those  securities,  for  as  lon<:; 
as  they  think  it  advantageous,  the  money  invested  by  the  testator  in 
those  securities,  or  to  invest  upon  securities  of  any  of  those  descrip- 
tions the  money  obtained  by  the  conversion  of  any  part  of  the  testa- 
tor's estate,  and  while  any  such  securities  form  part  of  the  testator's 
estate  the  tenant  for  life  is,  in  my  opinion,  entitled  to  the  specific 

1  5  De  G.  &  Sm.  72.3. 

2  Taylor  v.  Clark,  1  Hare,  161  ;  Meyer  v.  Simonson,  5  De  G.  &  Sm.  72.3  ;  Re  Lewellyn 
29  Bcav.  171  ;  Ilemenway  v.  Hemenway,  134  Mass.  446,  451  ;  Miidf^c  r.  Parker,  13!' 
M.XS.S.  \b^  Accord. 

In  accordance  with  what  is  called  the  rule  in  Howe  v.  Karl  of  Dartmouth,  if  there  Im 
a  f^ift  of  one's  pnrson.il  estate  or  of  the  re.sidup  tlieronf,  to  lio  (Mijoyfd  liy  jmtsous  in 
succession,  it  is  the  <luty  of  tlie  trustees  to  convert  so  inucli  of  tlio  property  as  is  of  a 
wa«ting  or  perishahle  nature  into  permanent   securities   approved  by  the  court.     A 
conversion  was  deetneil  essential  in  Powell  v.  Cleaver,  7  Vi'S.  I  12  n.  (Of.)  ;  Cranch  r 
Cranch,  7  \cn.  141   n.  ('.».''>) ;   Howe  v.  Dartnioutli,  7  Ves.  72  ;   Fe.irns  v.  Younji;.  it  Ven 
549  ;  Lichfield  v.  Baker,  2  Bcav.  487  ;  Caldccott  v.  Caldecott.  1  Y.  &  C.  C.  C.  .312 ;  Bern. 
r.  Dixon,  10  Sim.  fi.'ir,  ;  Sutherland  v.  Cooke,  1  Coll.  49S  ;  Johnson  v.  .lohnson,  2  Coll 
441  ;   Piikup    V.   Atkinson,  4    Hare,  ('(24;   .MnrKan   r.   Morgan,   14   Heav.  72;  Craij;  r 
Wheeler,  29  L.  J.  Ch.  .374  ;  Re  Lewellyn,  29  Beav.  171  ;  Piiijreon  v.  Spencer,  16  \..  T 
Hep.  83;  In  re  Shaw,  12  Kf|.  124;  Tickner  r.  <  ll<l.  18  Va\.  422;  Porter  v.  Baddeley.  .'> 
Ch.   I).  542  ;  Macdonald  v.   Irvine.  K  Ch.  D.  101  ;  In  re  Smith,  48  L.  .F.  Cli.  ao-'i ;   Kin 
month  r.  BriKham,  5  All.  770;  Minot  v.  Thomjmon,   106   M.nss.    5H3 ;    Cnvenlioven  i 
.Shuler,  2  Pai^e,  122;   Williamson  >•.  Williamson,  6  Pai^e,  298  ;  C.iirns  c.  Chauliort,  '.i 
Paitje,  160;  Spear  v.  Tinkham,  2  Barh.  Ch.  211  ;  Smith  r.  B.arham,  2  Dov.  Kq.  420. 
.lones  i\  SimmfiiiH,  7  Ired.  Iv|.  178;   Saunders  v.  Ifantjhfnn,  K  Ired.  lv|.  217. 

But  effect  will  of  course  ho  given  to  an  intention,  to  he  gatiiored  from  the  lanpiiag" 
of  the  giver,  that  the  property  should  he  enjoyed  in  n/jcrie.     A  largo  number  of  cases 
in  which  the  court   refused  to  direct  a  conversion  may  ho  found   in   l/owin.  Trusts, 
l9thEd.)  319.  —  V.u. 


492  BIIOWN    V.    GELLATLY.  [CHAP.  V. 

Income  of  the  securities,  just  as  if  they  bad  been  £3  per  cent  consols.* 

1  understand  the  words  of  tlie  will  as  amounting  to  the  constitution  by 
the  testator  of  a  larger  class  of  authorized  securities  than  this  court 
itself  would  have  approved  of,  and  the  court  has  merely  to  follow  his 
directions,  and  treat  the  income  accordingl}-,  as  being  the  income  of 
authorized  securities. 

Then  comes  the  third  question  iu  the  case,  the  securities  not  ranging 
themselves  under  any  of  those  mentioned  in  the  last  clause  of  the 
will.  They  appear  to  have  been  securities  possessed  by  the  testa- 
tor himself,  but  that,  I  think,  makes  no  difference ;  as  they  do  not 
come  within  the  class  of  authorized  securities  it  was  the  duty  of  the 
trustees  to  convert  them  at  the  earliest  moment  at  which  they  properly 
could  be  converted.'^  I  do  not  mean  to  say  that  the  trustees  were  by 
any  means  open  to  censure  for  not  having  converted  them  within  tlie 
year,  but  I  think  that  the  rights  of  the  parties  must  be  regulated  as  if 
they  had  been  so  converted.  I  think  the  proper  order  to  make  is  that 
which  was  made  in  Dimes  a.  Scott,^  followed  by  Vice-Chancellor  Wig- 
ram  in  the  case  of  Taylor  v.  Clark,*  namely,  to  treat  the  tenant  for 
life  as  entitled,  during  the  year  after  the  testator's  death,  to  the  divi- 
dends upon  so  much  3  per  cent  stock  as  would  have  been  produced  by 
the  conversion  and  investment  of  the  propert}'  at  the  end  of  the  year. 
This  will  involve  a  variation  of  the  order  under  appeal  as  to  those 
securities,  since  it  proceeds  upon  a  somewhat  different  footing,  and 
aggregates  the  amount  produced  by  conversion  at  the  end  of  the  year 
with  the  di%ndends  produced  during  the  year,  which  is  not  precisely  in 
accoi'dance  with  Dimes  v.  Scott,  and  Taylor  v.  Clark. ^ 

1  Wrey  v.  Smith,  14  Sim.  202  ;  Mackie  v.  Mackie,  5  Hare,  70  ;  Sparling  v.  Parker, 
9  Beav.  524;  Hubbard  v.  Young,  10  Beav.  20.3;  Juhnstou  v.  Moore,  27  L.  J.  Ch.  453; 
Green  v.  Britten,  1  D.  J.  &  S.  649 ;  In  re  Chancellor,  26  Ch.  Div.  482 ;  In  re  Sheldon, 
39  Ch.  T>.  50 ;  In  re  Thomas,  '91,3  Ch.  482  ;  Hemenway  i;.  Hemenway,  134  Mass.  446 
Accord.  — Ed. 

•^  Kirkraan  v.  Booth,  11  Beav.  273;  Thornton  v.  Ellis,  15  Beav.  193;  Blann  y.  Bell, 

2  D.  M.  &  G.  775, 5  De  G.  Sm.  658  ;  Hood  v.  Clapham,  19  Beav.  90 ;  Wightwick  v.  Lord, 
6  H.  L.  C.  217,  228  (semble)  ;  Re  Hill,  50  L.  J.  Ch.  551  ;  Kinmonth  v.  Brigham,  5  All. 
270;  Ashurst  v.  Potter,  29  N.  J.  Eq.  625,  632  Accord.  — Ed. 

8  4  Rus.s.  195.  *  1  Hare,  161. 

*  See,  in  further  confirmation  of  Dimes  v.  Scott,  Morgan  v.  Morgan,  14  Beav.  72  ; 
Holgate  V.  Jennings,  24  Beav.  623;  Re  Lewellyn,  29  Beav.  171  ;  Hume  v.  Richardson, 
4  D.  F.  &  J.  29  ;  Allhusen  v.  Whlttell,  4  Eq.  295.  —Ed. 


SECT.  IV.]  LOWSON   V.    COPELAXD.  49i 


LOWSON   V.   COPELAND. 
In  Chancery  before  Lord  Thurlow,  C,  March  17,  1787. 

[Reported  in  2  Brown,  Chancery  Cases,  156.] 

Ann  Barber  made  her  will  in  1765,  and  thereby  gave  the  defendant 
an  annuity  of  three  pounds  per  annum  for  his  trouble  in  receiving 
several  rents  of  her  real  estate,  and  appointed  him  executor,  making  no 
disposition  of  the  residue  of  her  estate.  In  1770,  the  plaintiffs  filed 
their  bill  as  next  of  kin  of  the  testatrix,  insisting  that  the  gift  of  the 
annuity  had  turned  the  defendant  into  a  trustee  for  them  as  to  the 
undisposed  surplus,  and  praying  an  account  of  all  sums  he  had  received, 
or  might  have  received.  The  defendant,  by  his  answer,  contested  the 
plaintiffs  being  next  of  kin,  and  put  them  to  the  proof  of  their  relation- 
ship ;  and,  in  case  they  were  such,  controverted  his  being  turned  into 
a  trustee  for  them.  The  cause  was  heard  before  his  late  Honor  in 
1773,  who  decreed  that  the  defendant  was  a  trustee  for  the  next  of 
kin,  and  referred  it  to  the  Master  to  inquire  whether  the  plaintiff's  were 
the  next  of  kin,  and  to  take  an  account.  In  1783  the  INIastor  made 
his  report  that  the  plaintiffs  were  the  next  of  kin ;  and,  aniong  otlier 
things,  stated  a  bond,  bearing  date  the  1st  of  May,  1761,  by  one 
Lumley,  to  the  testatrix,  for  one  hundred  pounds,  with  which  the 
Master  charged  the  defendant.  To  this  report  the  defendant  ex- 
cepted, for  that  the  Master  iiad  charged  him  with  the  £100  as  received 
from  Lumley,  wiiereas  he  had  not  received  it,  although  he  had  made 
various  applications,  and  used  due  diligence  to  obtain  payment  of 
it.  This  exception  coming  on  before  the  Lords  Commissioners,  they 
referred  it  to  the  Master  to  inquire  whether  the  executor  had  taken 
proper  steps  for  the  recovery  of  tlie  money,  and  wliether  the  debt 
was  a  good  df))t,  and  ordered  tlie  defendant  to  call  in  tlie  bonil. 
The  Master  reported,  that  the  defendant  had  ajjplicd  by  an  attorney 
to  the  obligor  in  the  bond,  to  pay  the  debt,  but  had  bnnight  no  action, 
or  made  any  other  application  ;  and  that  it  did  not  appear  whether  the 
debt  was  or  was  not  recoverable. 

It  now  came  on  again  upon  furdier  directions. 

Mr.  Ambler  and  JUr.  Scott  (for  the  defendant)  insisted  that  the 
report  did  not  charge  the  defendant  witli  sueii  n  neglect  as  ought  to 
make  him  perHonally  liab'e  to  answer  th<'  £100  not  got  in  from  the 
bond  debt;  that  the  defendant  had  made  many  npi)lieation8  to  the 
obligor;  and  although  he  iiad  not  brouglit  any  action,  that  arose  only 
from  the  fear  of  an  useless  expense.  That  the  Master  Iiad  reported  it 
a  doubtful  debt,  and  the  plaintiffs  had  never  called  upon  him  to  bring 
anv  action  ;  and  he  was  the  rather  indneed  not  to  do  so,  as  he  con- 
sidered himself  as  acting  upon  his  own  money,  having  no  idea  that  the 
annuity  of  £o  per  annum  iiad  turned  him  into  a  trustee ;  cases  having 


494  LOWSON   V.   COPELAND.  [CHAP.  V. 

boon  iloterminoil,  that  where  a  legacy  is  not  given  iu  such  a  way  as  to 
oxchulo  the  intontiou  of  giving  the  whole,  it  has  been  hold  not  to  turn 
the  executor  into  a  trustee,  which  he  had  been  advised  was  the  case 
with  this  annuity. 

But  Lord  Chancellor  ordered  that  he  should  be  liable  for  this  £100 
as  having  uot  been  got  iu  iu  consequence  of  his  ueglect.^ 

1  Powell  V.  Evans,  5  Ves.  839 ;  Caffrey  v.  Darby,  6  Ves.  488 ;  Tebbs  v.  Carpenter, 
1  Mad.  290;  Mucklow  v.  Fuller,  Jac.  198;  Platel  v.  Cradock,  C.  P.  Cooper,  481; 
Clough  V.  Bond,  3  M.  &  Cr.  490,  496  ;  Cauey  v.  Bond,  6  Beav.  486  ;  Bullock  v.  Wlieat- 
ley,  1  Coll.  130;  Feinvick  v.  Greeuwell,  10  Beav.  412  ;  Styles  ;•.  Guy,  1  Mac.  &  G.  422  ; 
Byrne  v.  Norcott,  13  Beav.  336  ;  McGachen  v.  Dew,  15  Beav.  84  ;  Wiles  v.  Gresham,  2 
Drew.  258;  Brittlebauk  u.  Goodwin,  5  Eq.  545,  550;  Re  Brogden,  38  Ch.  Div.  546; 
Jn  re  Tucker,  '94,  1  Ch.  724;  Duffee  v.  Buchauau,  8  Ala.  27  ;  lloyall  v.  McKcnzie,  25 
Ala.  363 ;  Oglcsby  v.  Howard,  43  Ala.  144  ;  Muuden  i:  Bailey,  70  Ala.  G3  ;  Sanderson 
V.  Sanderson,  20  Fla.  292;  Whitney  v.  Peddicord,  63  111.  249  ;  Waterman  i'.  Alden,  144 
111.  90;  Simpson  v.  Gowdy,  19  fnd.  292;  State  v.  Gregory,  88  Ind.  110;  Cross  t;. 
Petree,  10  B.  Hon.  413  ;  Hunt  v.  Gontrura  (Md.  '94),  30  Atl.  R.  620 ;  Banks  v.  Machen, 
40  Miss.  256 ;  Kincheloe  v.  Priest,  89  Mo.  240 ;  Booker  v.  Armstrong,  93  Mo.  49  ; 
Schultz  V.  Pulver,  11  Wend.  361,  3  Paige,  182  ;  Holcomb  v.  Coryell,  11  N.  J.  Eq.  477  ; 
Poulson  V.  Johnson,  29  N.  J.  Eq.  529  ;  Speakman  v.  Tatem,  48  N.  J.  Eq.  137,  50 
N.  J.  Eq.  484 ;  Cooley  v.  Vansyckle,  14  N.  J.  Eq.  496 ;  Mills  v.  Hoffman,  26  Huu,  594 , 
O'Connor  v.  Gifford,  6  Dem.  71  ;  Harrington  v.  Keteltas,  92  N.  Y.  40;  Wilson  v. 
Lineberger,  88  N.  Ca.  416  ;  Long's  Est.,  6  Watts,  46  ;  Johnston's  Est.,  9  W.  &  S.  107  ; 
Beckley's  App.,  3  Barr,  425  ;  Will's  App.,  22  Pa.  330;  Charlton's  App.,  34  Pa.  473; 
Sheffer's  App.,  46  Pa.  131 ;  Be  Strong's  Est.,  160  Pa.  13  (but  see  Keller's  App.,  8  Pa. 
288);  Gates  v.  Whetstone,  8  S.  Ca.  244;  Perry  v.  Wootou,  5  Humph.  524  (see 
James  v.  Wingo,  7  Lea  (Tenn.),  148;  Holmes  v.  Bridgraan,  37  Vt.  28;  McCloskey 
V.  Gleason,  56  Vt.  264  ;    Rowe  v.  Bentley,  29  Grat.  756. 

In  the  principal  case  it  did  not  appear  whether  the  debt  might  have  been  recovered  by 
the  exercise  of  due  diligence  by  the  trustee.  But  the  latter  was  properly  charged  with 
the  full  amount  of  the  debt.  For,  as  Mr.  Justice  Liudley  clearly  states  the  law,  "  When 
the  cestui  que  trust  has  shown  that  the  trustee  has  made  default  in  the  performance  of 
his  duty,  and  when  the  money  which  was  the  subject  of  the  trust  is  not  forthcoming, 
the  cestui  que  trust  has  made  out,  in  my  judgment,  a  prima  facie  case  of  liability  upon 
the  trustee,  and  if  the  trustee  desire  to  repel  that  by  saying  that  if  he  had  done  his 
duty  no  good  would  have  flowed  from  it,  the  burden  of  sustaining  that  argument  is 
plainly  upon  the  trustee."  Re  Brogden,  38  Ch.  Div.  546,  572.  See  to  the  same  effect 
Maitland  v.  Bateman,  16  Sim.  233,  n. ;  Edmunds  v.  Peake,  7  Beav.  239  ;  East  v.  East, 
5  Hare,  343;  Clark  v.  Holland,  19  Beav.  262,  271;  Grove  v.  Price,  26  Beav.  103; 
Hobday  i-.  Peters,  28  Beav.  603  ;  Re  Hurst,  63  L.  T.  Rep.  665,  668  ;  Ball  v.  Ball,  11 
Ir.  Eq.  370;  Alexander  v.  Alexander,  12  Ir.  Ch.  1;  Re  Sanderson,  74  Cal.  199; 
Sherrell  v.  Shepard,  19  Fla.  300;  Williams  v.  Pettigrew,  62  Mo.  471  ;  Julian  v.  Abbott, 
73  Mo.  580 ;  Powell  v.  Hunt,  108  Mo.  507  ;  Mitchell  v.  Trotter,  7  Grat.  136  ;  Lovett  v. 
Thomas,  81  Va.  245. 

Similarly  a  trustee  may  defeat  a,  prima  facie  case  against  himself  by  showing  that 
more  was  probably  to  l)e  realized  on  the  claim  by  indulgence  to  the  debtor  for  a  time 
than  by  summary  legal  proceedings.  Walker  »,'.  Symond.s,  3  Sw.  1,  71  ;  Ratdiffe  v. 
Winch,  17  Beav.  217  ;  Iu  re  Earl,  39  W.  R.  107  ;  Waring  v.  Waring,  10  Gill  &  J.  127  ; 
Torrence  v.  Davidson,  92  N.  Ca.  437  ;  Neff's  App.,  57  Pa.  91 ;  Dabney's  App.,  120  Pa. 
345  ;  Tanner  v.  Bennett,  33  Grat.  251. 

Compromise.  —  To  justify  a  compromise  of  a  claim  by  a  trustee,  the  latter  must 
shew  that  it  was  a  reasonable  settlement  of  a  claim  which  in  all  probability  could  uot 
have  been  collected  in  full.  Blue  v.  Marshall,  3  P.  Wms.  381  ;  Pennington  v.  Healey,  1 
Cr.  &  M.  402  ;  Wiles  v.  Gresham,  5  D.  M.  &  G.  770;  Moulton  v.  Holmes,  57  Cal.  337 , 
Siddall  V.  Clark,  89  Cal.  321,  323;  Fridge  v.  Buhler,  6  La.  An.-274;  Berry  v.  Parkes, 


..1^ 


SECT.  IV.]  ROBINSON   V.   ROBINSON.  495 

Mr.  Lloyd  (for  the  plaintiffs)  pressed  that  he  might  pay  interest  for 
the  money  admitted  by  the  account  to  be  in  his  hands,  and  all  costs. 

Lord  Chancellor  refused  charging  him  with  interest,  ^  but  ordered 
him  to  pay  the  costs  of  establishing  the  next  of  kin. 


ROBINSON  V.   ROBINSON. 

In  Chancery,  before  Lord  Cranworth  and  Sir  J.  L.  Knight 
Bruce,  L.JJ.,  December  22,  1851. 

[Reported  in  1  De  Gex,  Macnaghten  and  Gordon,  247] 

Lord  Cran^wortu,  L.  J.'  In  the  present  case  it  will  be  observed 
the  executors  had  the  option  of  investing  the  trust  money  at  their 
discretion  on  real  or  government  securities,  and  in  such  a  case  Sir  J. 
Leach  held,  in  the  case  of  Marsh  v.  Hunter,^  that  trustees,  by  whose 
dtifault  the  money  is  lost,  are  chargeable,  not  with  the  amount  of 
stock  which  might  have  been  purchased,  but  only  with  the  principal 
money  lost,  and  of  course,  though  the  report  is  not  so  expressed,  with 
interest  thereon. 

That  decision  occurred  in  1822.  Four  years  later,  namely,  in  1826, 
occurred  the  case  of  Hockley  v.  Bantock,*  before  Lord  Gifford. 
There  the  executors  had  a  similar  discretion  of  investing  either  on 
real  or  government  securities ;  and,  on  a  bill  seeking  to  charge  them 
with  balances  improperly  retamcd  in  their  hands,  Lord  Gifford  directed 

11  Miss.  62.^);  Long  ;;.  Sh-ackli-fonl,  25  Mis.s.  .559,  5fiG  ;  WvmanV  Apji.  l.T  \.  H.  1«; 
In  re  Scott,  1  Kedf.  2.34,  2.'J6 ;  Chouteau  v.  Snydam,  21  N.  Y.  17'.> ;  Hacut  r.  Iloywanl. 
5  S.  Ca.  441  ;  Pool  v.  Dial,  10  S.  Ca.  440;  Alexauder  r.  Kelso,  59  Toiui  .•til  :  I^iya  v. 
Oglesby,  2.3  (Jrat.  674. 

A  truHtee  taking  paymf^nt  in  Confederate  monov  in  the  Southern  Stato.s  durine:  'ho 
late  war,  wlien  it  W!w  llif?  fum-ncy  of  those  StatoH.  slioiilil  he  jirotcclrMl,  it  has  hccn  Hiiid. 
if  he  afted  honestly.  Caniplidl  r.  Miller,  riHCa.  ."UM  ;  WcslKrook  r.  Davis,  JS  [in  471  : 
Venable  v.  Cody,  68  Ca.  171  ;  Davis  v.  Harinan,  21  Grat.  194. 

It  is  not  the  duty  of  a  trustee  to  hrinp  an  action  to  rollcrt  a  claim  wiit-n  there  is  no 
rea.sonahle  ground  for  hclievini;  that  anything  can  I)e  re;i]ized  therehy.  Mown  i\  Mont- 
gomery, 48  Ala.  .'15.3  ;  Pool's  Case,  14  La.  An.  f.77  ;  Rmitli  c.  Collcmer,  2  Deni  147  : 
Mitchell  V.  Trotter,  7  Grat.  1.30  ;  Anderson  r.  Piercy,  20  \V.  Va.  2H2,  .327.  I'nlesH  h<> 
is  indemnified  as  to  the  costs  of  the  .action.  Griswold  v.  Chandler,  5  N.  II.  492;  San- 
born a.  Cioodhue,  28  N.  H.  48  ;  Hepburn  v.  Hepburn,  2  Ilnidf.  7J  ;  Ctley  t).  Unwlins,  2 
Dcv.  &  R.  Kr|.  4.38.  —  Ei). 

'  Tebbs  V.  Carpenter,  1  Madd.  290.299;  Pulliam  »•    Pulliam,  10  F.  U.  5.3  Armrd. 

Mut  see  rtmirn,  ICx  jinrte.  Ogle,  8  Ch.  711,  710  ;  Kppinger  i:  Canepa,  20  Kla.  202. 
288  ;  Scott  V.  Crews,  72  Mo.  201  ;  Torbet  «•.  M<I{eynolds,  J  Muinpli.  215;  Lowry  a 
McGoe,  .3  Head.  209.  —  En. 

^  Only  a  portion  of  I.ord  Cranworth's  opinion  is  given.  —  Kt>. 

«  6  Madd.  295.  «  1  Russ.  141. 


496  ROBINSON   V.    ROBINSON.  [ClIAP.  V. 

an  inquiry  as  to  the  price  of  £3  per  cents  at  the  several  times  when  the 
bahiiiees  ought  to  have  been  invested.  Such  an  inquiry  would  liave 
been  improper  if  the  executors  could  not  have  been  charged  with  the 
value  of  the  stock ;  and  the  case,  therefore,  is  an  authority  that,  in 
the  opinion  of  Lord  Gilford,  they  might  be  so  charged.  Notwith- 
standing this  last  case,  however.  Sir  J.  Leach  adhered  to  his  own  view 
of  tlie  law,  and  acted  on  it  in  an  unreported  case  of  Gale  v.  Pitt  at  the 
Rolls  on  the  10th  of  May,  1830. 

Lord  Gifford's  authority  had  been  followed  by  Lord  Langdale  in 
several  reported  cases,  to  which  we  were  referred  in  the  argument ; 
namely,  "Watts  v.  Girdlestoue,  *  Ames  v.  Parkinson,  ^  and  Ouseley  /'. 
Anstruther.* 

On  the  other  hand  Sir  James  Wigram,  in  Shepherd  v.  Mouls,* 
and  my  learned  brother  in  Rees  v.  Williams,^  have  refused  to  follow 
the  authority  of  Hockley  v.  Bautock,®  and  have  acted  on  the  earlier 
case  of  Marsh  v.  Hunter.''  In  this  irreconcilable  conflict  of  authority, 
it  is  absolutely  necessary  for  us  to  look  to  the  principles  on  which  the 
doctrine  rests. 

There  can  be  no  doubt  but  that,  where  trustees  improperly  retain 
balances  in  their  hands,  or,  by  want  of  due  care,  cause  or  permit 
trust  money  to  be  lost,  they  are  chargeable  with  the  sums  so  retained 
or  lost,  and  with  interest  on  them  at  £4  per  cent.* 

1  6  Beav.  188.  27  Beav.  379.  8  10  Beav.  456 

*  4  Hare,  .500.  6  1  De  G.  &  S.  314.  6  1  Russ.  141'. 

■^  6  Madd.  295. 

8  Necjiiqence. —  Hicks  v.  Hicks,  3  Atk.  274;  Rocke  v.  Hart,  11  Ves.  58;  Ashburn- 
ham  V.  Taylor,  13  Ves.  402 ;  Tebbs  v.  Carpenter,  1  Mad.  290 ;  Holgate  v.  Hawortli, 
17  Beav.  259  ;  Johnson  v.  Prendergast,  28  Beav.  480;  In  re  Evans,  W.  N.  (1876),  205  ; 
Gilbert  v.  Price,  W.  N.  (1878),  117.  See  also  Gilroy  v.  Stevens,  51  L.  J.  Ch,  834  (3 
per  cent  compound  interest) ;  Clapp  v.  Woodall,  38  Sol.  J.  487  (3  per  cent)  Accord. 

Active  Misconduct.  —  If  the  trustee  is  guilty  of  active  mi,«conduct,  as  distin- 
guished from  negligence,  he  is  liable  in  England  for  interest  at  five  per  cent.  Piety 
/•.  Stace,  4  Ves.  620 ;  Pocock  v.  Redington,  5  Ves.  794 ;  Tebbs  v-  Carpenter,  1  Mad. 
290,  306  (semble) ;  Crackelt  v.  Bethune,  1  J.  &  W.  586 ;  Bick  v.  Motley,  2  M.  &  K.  312  ; 
Munch  V.  Cockerell,  5  M.  &  Cr.  178,  220;  Mousley  v.  Carr,  4  Beav  49,  53  ;  Mayor  v. 
Murray,  7  D.  M.  &  G.  497 ;  Burdick  v.  Garrick,  5  th.  233 ;  Ex  parte  Ogle,  8  Ch.  71 1  ; 
Hooper  v.  Hooper,  W.  N.  (1874),  174;  Price  v.  Price,  42  L.  T.  Rep.  626;  Re  Jones, 
49  L.  T.  Rep.  91. 

But  see  Newton  v.  Bennet,  1  Bro.  C.  C.  358 ;  Perkins  v.  Baynton,  1  Bro.  C.  C.  375 ; 
In  re  Hilliard,  1  Ves.  Jr.  90;  Browne  r.  Southouse,  3  Bro.  C.  C.  107;  Younge  v. 
Combe,  4  Ves.  101  ;  Dawson  ik  Massey,  1  Ba.  &  Be.  218;  Attorney-General  v.  Alford, 
4  D.  M.  &  G.  843;  In  re  Emmet,  17  Ch.  D.  142;  Fletcher  v.  Green,  33  Beav.  426; 
Vyse  V.  Fester,  8  Ch.  309,  337  (semble),  (in  which  cases  the  misconducting  trustee  was 
charged  with  only  4  per  cent  interest). 

Originally  an  executor,  who  used  for  himself  the  funds  of  the  estate  in  his  charge, 
was  not  liable  for  any  intere.'^t.  Gro.svenor  v.  Cartwright  (1679),  2  Ch.  Ca.  21  ;  Linch 
V.  Cappy  (1680),  2  Ch.  Ca.  35;  Bromfield  v.  Wytherly  (1718),  Prec.  Ch.  505.  But 
these  cases  were  overruled  in  Ratcliffe  w.  Graves,  1  Vcrn.  196,  2  Ch.  Ca.  152,  s.  c, 
and  Corsellis  v.  Lake,  1  Vern.  197  n.  (1).  See  also  Child  v.  Gibson,  2  Atk.  603; 
Adams  v.  Gale,  2  Atk.  106. 

In  this  country  the  distinction  between  negligence  and  active  misconduct  has  not 
generally  prevailed.     In  each  case  the  trustee  is  charged  with  simple  interest  at  the 


SECT.  IV.]  E03INS0N    V.    ROBINSON.  497 

It  may  also  be  true  that,  where  trustees  have  in  their  hands  money 
which  they  are  bound  to  secure  permanently  for  the  benefit  of  their 
cestuis  que  trustent,  then,  in  the  absence  of  express  authority  or  direc- 
tion to  the  contrary,  they  are  generally  bound  to  invest  the  money  in 
the  £3  per  cents.  This  obligation  is  not  the  result  of  any  positive 
law,  but  has  been  imposed  on  trustees  by  the  court  as  a  convenient 
rule  affording  security  to  the  cestuis  que  trustent,  and  presenting  no 
possible  difficulty  to  the  trustees. 

Suppose,  then,  that  trustees  have  improperly  retained  in  their  hands 
balances  which  they  ought  to  have  invested  in  £3  per  cents,  either  by 
reason  of  this  general  rule  of  the  court,  or  because  such  a  duty  was 
expressly  imposed  on  them  by  the  terms  of  the  trust,  or  have  by 
neglect  allowed  such  balances  to  be  lost,  what,  in  such  a  case,  is  the 
right  of  the  cestuis  que  trustent  ? 

In  all  such  cases,  or  at  all  events  in  all  such  cases  where  there  has 

legal  rate.  In  re  Thorp  (U.  S.  D.  C),  4  N.  Y.  Leg.  Obs.  377  ;  Bourne  r.  Maybin,  3 
Woods,  C.  C.  724;  Bryant  v.  Craig,  12  Ala.  354  ;  Nunn  v.  Nunn,  G6  Ala.  3.5 ;  Eppiuger 
V.  Canepa,  20  Fla.  262  ;  Hough  >:  Harvey,  71  111.  72  ;  Lehman  v.  Rothbarth,  111  111 
185;  Rochester  f.  Levering,  104  lud.  562;  Hughes  i-.  Smith,  2  Dana,  251  ;  Grigsby 
V.  Wilkinson,  9  Bush,  96;  Ringgold  v.  Ringgold,  1  Har.  &  G.  11  ;  Comegys  v.  State, 
10  Gill  &  J.  175  ;  Smith  v.  Darby,  39  Md.  268  ;  Gott  v.  State,  44  Md.  319 ;"  McKim  v. 
Hibbard,  142  Mass.  422  ;  Moyer  v.  Fletcher,  56  Mich.  508;  Judd  v.  Dike,  30  Minn. 
380;  Crosby  y.  Merriam,  31  Minn.  342;  Ames  v.  Scudder,  83  Mo.  189,  11  Mo.  Ap. 
168;  Knowlton  i-.  Bradley,  17  N.  H.  458;  Stark  i-.  Gamble,  43  N.  H.  465;  Bartlett  v. 
Fitz,  59  N.  H.  602,  503  ;  Aldridge  v.  McClelland,  36  N.  J.  Eq.  288  ;  Demarcst  v.  Dem- 
arest,  1  Johns.  Ch.  508 ;  Manning  v.  Manning,  1  Johns.  Ch.  525  ;  De  Pcyster,  Aj)p. 
2  Wend.  77;  Utica  Co.  v.  Lynch,  11  Paige,  520;  Garniss  v.  Gardiner,  I  Edw.  130; 
Thorn  v.  Garner,  42  Hun,  507;  Lant  v.  Howard,  89  N.  Y.  169;  Cook  i:  Lowry,  95 
N.  Y.  103;  Re  Myers,  131  N.  Y.  409  (But  .xee  Wilmerding  v.  MrKc.>ison,  103  N.  Y. 
329) ;  Morgan  v.  Morgan,  4  Dem.  353  ;  In  re  Barnes,  23  N.  Y.  Sup.  600;  Sbipp  i-. 
Hettrick,  63  N.  Ca.  329;  Armstrong  v.  Miller,  6  Oh.  118;  In  re  McCall  1  Ashm.  357  ; 
Fox  V.  Wilcock.s,  1  Binn.  194  ;  Say  v.  Barnes,  4  S.  &  R.  112  ;  Lane'.s  App.,  24  I'a.  4S7  ; 
Landi.H  i-.  Scott,  32  I'a.  495  ;  rennypackcrs  Ap,  41  I'a.  494  ;  Ilim.son'.s  Aj).,  43  I'a. 
431  ;  Hess's  Est.,  68  Pa.  454;  Conrad's  Ai)p.,  11  W.  N.  (Pa.)  521  ;  Whitecar's  Est., 
147  Pa.  368;  Black  v.  Blakoly,  2  McC.  Ch.  1,10;  Wright  r.  Wright.  2  McC.  Ch. 
185  ;  Turney  r.  Williams,  7  Yerg.  173,  213;  Cannon  v.  Ai>p('r.si)M,  14  Lea,  55.1;  Murchison 
V.  Payne,  37  Tex.  305;  Reed  v.  Timmins,  52  Tex.  84  ;  McCloskey  v.  Glea.son,  56  Yt, 
264  ;  Miller  r.  Beverley,  4  lien.  &  .M.  415  ;  Cavendish  v.  Kloining,  3  Munf.  198  ;  Ker  r. 
Snead,  11  Montlily  L.  Rep.  217  ;  C<pgbil]  r.  Mini,  79  Va.  I  ;  In  re  Thur.slon,  57  Wit*. 
104.  In  Schofield's  Est.,  99  111.  513,  it  was  deciiicMJ  lliat  n  trustoo  who  mixed  tlie  trust 
fund  with  his  own  wns  nt)t,  mendy  on  that  ncrount,  liable  for  interest  so  long  na  ho 
remained   solvent,  liut   this  doctrine   is  deservedly  witlioul  support  elsewlicre. 

In  Wilmerding  v.  McKes.s'm,  103  N.  Y.  .329,  the  Kngli.-b  ductrine  of  allowing  e(|uit- 
able  interest,  /.  e.,  interest  Ixdow  tiie  legal  rate,  where  the  lireach  of  tru.st  involves  no 
moral  delini|nency,  in  followed. 

Innftrent  M isn]ij>lirnli<in  of  Tnmt  Fund. — It  lias  Iteen  thojight  that  n  fulncinry.  who 
has  acted  under  a  misa[)[)rehen.'*ion  of  rights,  and  without  j>ro)it  to  liiinsilf,  xhould  not 
be  charged  with  any  interest,  oven  though  in  fact  he  misapfdied  tiie  trust  fun<l.  .Salt- 
mar.^h  <•.  Barrett,  31  Beav.  349;  Pnlliam  v.  Piilliam.  10  F.  R.  53.  But  this  opinion  is 
at  variance  with  the  authorities  generally.  Mousley  v.  Carr,  4  IWav.  49  ;  Atty-Gen.  i'. 
K.>ehler,  9  II.  L.  C.  654  ;  Inglis  v.  Beaty,  2  Ont.  Ap.  4.53 ;  In  rr  Iluikos,  .13  Cli.  I)  .'>52  ; 
Moody  V.  Hemphill,  71  Ala.  169;  Crowdcr  v.  Shackloford,  35  Miss.  321;  Jonoe  u 
Ward,  10  Yerg.  160. 

32 


498  ROBINSON   V.   ROBINSON.  [CHAP.  V. 

been  an  express  trust  to  invest  in  £3  per  cents,  the  cestuis  que  trustent 
have  the  option  of  charging  the  trustee  either  with  tlie  piincipul  sum 
retained  and  interest,  or  with  the  amount  of  .1'3  per  cents  which  would 
have  arisen  from  the  investment  if  properly  made.^  The  doctrine  of 
the  court  where  it  applies  this  rule  is,  that  tlie  trustee  shall  not  profit 
by  his  own  wrong.  If  he  had  done  what  he  was  bound  to  do,  a  certain 
amount  of  £3  per  cents  would  have  been  forthcoming  for  the  ce.Htiiia 
(jue  trustent.  And  therefore  if  called  on  to  have  sucii  £3  per  cents 
forthcoming,  he  is  bound  to  do  so ;  just  as,  in  ordinary  cases,  every 
wrong-doer  is  bound  to  put  the  party  injured,  so  far  as  the  nature  of 
the  case  allows,  in  the  same  situation  in  which  he  would  have  stood  if 
the  wrong  had  not  been  done.     All  this  is  very  intelligible.^ 

Again,  suppose  the  trustee  has  not  only  improperly  retained  balances, 
but  has  lent  or  used  them  in  trade.  There  the  cestui  que  trust  has 
the  right,  if  it  is  for  his  interest  to  do  so,  to  charge  the  trustee  not 
with  the  sum  i-etaiued  and  interest,  but  with  all  the  profits  made  in  the 
trade. ^ 

1  Bate  I'.  Hooper,  5  D.  M.  &  G.  338 ;  Pride  v.  Fooks,  2  Beav.  430 ;  Re  Lasak,  20 
N.  y.  Sup.  74  Accord. 

If  a  trustee  improperly  sells  the  trust  securities  and  they  rise  in  value  he  is  account- 
able for  the  appreciation.     Piety  v.  Stace,  4  Ves.  620,  622.  —  Ed. 

-  See  Baruey  v.  Saunders,  16  How.  (U.  S.)  535. 

■^  Anon,  2  Ves.  630;  Burden  v.  Burden,  1  J.  &  W.  134  (cited);  Palmer  v.  Mitchell, 
2  M.  &  K.  672,  n. ;  Docker  v.  Somes,  2  M.  &  K.  655  ;  Willett  v.  Blanford,  1  Hare,  253  ; 
Wedderburn  i;.  Wedderburn,  22  Beav.  84 ;  Townend  v.  Townend,  1  Giff.  201  ;  Plockton 
V.  Bunning,  8  Ch.  323,  n. ;  Barney  v.  Saunders,  16  How.  535;  Whitney  v.  Peddicord, 
63  111.  249  ;  Ringgold  r.  Ringgold,  1  Har.  &  G.  11,  79,  80;  Heath  v.  Waters,  40  Mich. 
457  ;  McKnight  v.  Walsh,  23  N.  J.  Eq.  136,  24  N.  .1.  Eq.  498  ;  Schieffelin  r.  Stewart,  1 
Johns.  Ch.  620;  Robinett's  Ap.,  36  Pa.  174;  Norris's  Ap.,  71  Pa.  lOG;  Hazard  w. 
Durant,  14  R.  I.  25  Accord. 

In  determining  the  profits  made  by  a  trustee  the  whole  period  during  which  he  has 
nad  charge  of  the  fund  must  be  considered.  The  beneficiary  cannot  take  profits 
for  a  part  of  the  time  and  interest  for  the  rest  of  the  time.  Baker  r.  Disbrow,  18 
Hun,  29. 

Compound  Interest.  —  It  was  not  formerly  customary  to  allow  comjiound  interest 
against  a  trustee  simply  because  he  invested  the  trust  funds  in  trade.  Treves  v. 
Town-shend,  1  Bro.  C  C.  384,  1  Cox,  50,  s.  c. ;  Rocke  v.  Hart,  II  Ves.  58,  61  (semble) ; 
Ex  parte  Watson,  2  V.  &  B.  414  ;  Heathcote  v.  Ilulme,  1  .J.  &  W.  122,  134  (semble); 
Brown  v.  San.some,  McClel.  &  Y.  427;  Sutton  v.  Sharp,  1  Iluss.  146;  Moors  v.  I)e 
Bemales,  1  Russ.  301;  Atty.-Gen.  v.  Solly,  2  Sim.  518;  Docker  v.  Somes,  2  M.  &  K. 
655;  Mou.<ley  v.  Carr,  4  Beav.  49,  53  (semble);  Westover  v.  Chapman,  1  Coll.  177. 
But  at  the  present  day  if  ihQ  cestui  que  trust  prefers  to  charge  the  tru.stce  for  principal 
and  interest  instead  of  the  original  fund  with  the  profits,  the  court  will  usually  give 
him  compound  interest,  not  as  a  punishment  of  the  trustee,  but  because  of  a  presump- 
tion that  the  tru.stee  has  made  as  much  as  compound  interest,  unless  the  contrary  is 
made  to  appear  beyond  all  doubt  by  a  full  and  accurate  disclosure  of  the  accounts  of 
the  business.  Walker  v.  Woodward,  1  Russ.  107  ;  Heighington  v.  Grant,  I  Pli.  600; 
Jones  V.  Foxhall,  15  Beav.  388;  Williams  i".  Powell,  15  Beav.  461  ;  Penny  v.  Avison,  3 
Jnr.  N.  s.  62  (semble)  ;  Saltmarsh  v.  Barrett,  31  Beav.  349,  350  (semble) ;  Biirdick  v.  Gar- 
rick,  5  Ch.  233,  241 ,  243  ;  Inglis  v.  Beaty,  2  Ont.  Ap.  4.53  ;  Barney  v.  Saunders,  16  How. 
535;  Hook  v.  Payne,  14  Wall.  252;  In  re  Stott,52  Cal.  403  ;  Clark's  Est.,  .53  Cal.  .355; 
Merrifield  v.  Longmire,  66  Cal.  180 ;  In  re  Eschricli,  85  Cal.  98  ;  In  re  Thomj)son  (Cal. 
1894),  35  Pac.  R.  991  ;  Fall  v.  Simmons,  6  Ga.  265;  Johnson  v.  Hedrick,  33  Ind.  129; 


SECT.  IV.]  ROBINSON   V.   KOBIXSON.  499 

The  ground  on  which  this  right  rests  is  this.  The  employment; 
in  trade  is  unwarrantable  ;  but  if  it  turns  out  to  have  been  profltable 
the  cestui  que  trust  has  a  right  to  follow  the  money,  as  it  is  said, 
into  the  trade.  In  such  a  case,  the  trade  profits  have  in  fact  been 
produced  by  the  employment  of  the  money  of  the  cestui  que  trust  ;  and 
it  would  be  manifestly  unjust  to  permit  the  trustee  to  rely  on  his  own 
misconduct  in  having  exposed  the  funds  to  the  risks  of  trade,  as  a 
reason  for  retaining  the  extra  profits  beyond  interest  for  his  own 
benefit.  Even  where  no  such  extra  profits  have  been  made  the  cestui 
que  trust  is  in  general  at  liberty  to  charge  his  trustee,  who  has  allowed 
the  trust  money  to  be  employed  in  trade,  with  interest  at  £5  per  cent, 
that  being  the  ordinary  rate  of  interest  paid  on  capital  in  trade. ^ 
This  right  depends  on  principles  the  same,  or  nearly  the  same,  as  those 
which  enable  the  cestui  que  trust  to  adopt  the  investment,  and  take  the 
profits  actually  made. 

Clark  V.  Anderson,  10  Bush,  99  ;  Page  v.  Holraan,  82  Ky.  573  ;  Ringgold  v.  Ringgold, 
1  Har.  &  G.  11,  80;  Diffenderfer  v.  Winder,  3  Gill  &  J.  311 ;  Perrin  v.  Lepper,  72 
Mich.  454,  556;  Bobb  v.  Bobb  (Mo.  1877),  25  C.  L.  J.  126;  Crucc  r.  Cnue,  81  Mo. 
676;  Ames  v.  Scudder,  83  Mo.  189  (affirming  s.  c.  11  Mo.  Ap.  189) ;  (see  In  re  Davis, 
62  Mo.  450;  Williams  v.  Pettigrew.  62  Mo.  460;  Scott  v.  Crews,  72  Mo.  261); 
Crowder  i-.  Shackleford,  35  Miss.  321  ;  Troup  v.  Rice,  55  Miss.  278 ;  In  re  Kicker,  14 
Mont.  153;  McKnight  v.  Walsh,  23  N.  J.  Eq.  136,  24  N.  J.  Eq.  498;  Schieffelin  v. 
Stewart,  1  Johns.  Ch.  620 ;  Utica  Co.  v.  Lynch,  1 1  Paige,  520 ;  Garuiss  v.  Gardiner,  1 
Edw.  128,  130;  Hannahs  v.  Hannahs,  68  N.  Y.  610;  Cook  v.  Lowry.  95  N.  Y.  103  ; 
Berwick  v.  Ilalsey,  4  Redf.  18;  Swindall  v.  Swindall,  8  Ired.  Eq.  285  ;  In  re  Ilarlaiid, 
5  Rawle,  313  ;  Hazard  v.  Durant,  14  R.  I.  25  ;  Wright  v.  Wright,  2  McC.  Ch.  185,  203  ; 
Myers  v.  Myers,  2  McC.  Ch.  214,  265 ;  Livingston  v.  Wells,  8  S.  Ca.  347,  363  ;  Cannon 
V.  Apperson,  14  Lea,  553  ;  Reed  v.  Timniins,  52  Tex.  84  ;  Farwell  v.  Steer,  46  Vt.  678  ; 
Spaulding  v.  Wakefield,  53  Vt.  660,  664;  McCloskey  v.  Gleasou,  56  Vt.  264,  283; 
Perkins  i-.  Ilolli.stcr,  59  Vt.  348  ;  In  re  Hodges  ( Vt.  1S94),  28  Atl.  R.  663. 

Compound  interest  has  been  allowed  in  some  jurisilictions  purely  ou  the  griuind  of 
misconduct.  Price  v.  Peterson,  38  Ark.  494  ;  llougti  r.  Harvey,  71  111.  72;  Jenni.suu 
V.  Hapgood,  10  Pick.  77,  104;  Boyntnu  r.  Dyer,  18  Pick.  1;  Miller  i-.  Congilon.  14 
Gray,  114;  Elliott  v.  Sparrell,  114  Mass.  404;  Salsbury  v.  Colt,  27  N.  J.  Eq.  492; 
Robert's  App.,  92  Pa.  407.     Sec  also  Front  i\  Winston,  32  Mo.  489. 

Trust  for  Arcumnldlinn.  — Compound  interest  is  charged  against  a  trustoc  who  fails 
to  comply  with  a  direction  to  accumnlato  the  income  of  the  trust  fund.  Ha|)hacl  r. 
Boohin,  II  Ves.  92,  13  Vt^s.  407.  .V.I3  ,  Knott  v.  Cotte.-,  16  Bear.  77:  Townomi  >'. 
Townend,  I  Giff.  liHI  ;  In  re  Emmet,  17  Ch.  I).  142  (flislingnishing  Wilson  r.  IVake, 
3  Jur.  N.  8.  155,  and  AmiH.M  v.  Ilall,  3  Jur.  N.  h.  584) ;  Rowan  r.  Kirkpatriik,  14  III. 

1  ;  Bond  v.  Lockwood,  .33  III.  212-  Ilnghos  v.  People.  Ml  III.  457;  Clemens  r.  Cald- 
well, 7  B.  Mon.  171  ;  Voorhess  v.  Stoolhoff,  6  llalst.  145  ;  I'crrino  r.  IVtIy.  34  N.  .1.  Kq. 
193;  English  v.  Harvoy,  2  Rawle,  305;  Bowles  v.  Drayton,  I  Des».  489;  Edmonds  r. 
Crenshaw,  Harp.  Eq.  224. 

Ijisoliifliiurrn/  an  order  of  Court.  —  Compound  interost  in  also  given  whore  tlin 
trustee  di.'tregards  an  order  of  court  directing  jwiyment.  Walrond  r.  Walrond,  V'J 
Beav.  586.  — Ei>. 

>  See  Lcwin  TmstH  (5th  Eng.  ed.),  227,  276-27H;  Williams  v.  I'owell,  15  Beav.  461 ; 
Schieffelin  »■.  .Stewart,  1  .Johns.  Ch.  620;  2  Story  Eq.  Jnr.  §  1277;  Myers  r.  Myers,  2 
M'Coril,  214,  266;  Diffcndcrffer  v.  Winder,  3  Ilar.  &  G.  311  ;  per  Wei!.'*,  J.,  in  Marsli 
V.  Rcnton,  99  Mass.  135;  Trull  i-.  Tnill,  13  Allen,  407;  Blauvelt  r.  Ackerman.  5  C.  E. 
Green  (N.  J.),  14«,  140;  Flill  Trii»tce«  (.3d  Am.  ed.),  .Mb  and  note;  Staat*  v.  Bergen, 

2  C.  E.  Green  (N.  J.),  554,  562,  563. 


500  ROBINSON   V.   KOBINSON.  [ciIAr.  V. 

But  the  grounds  on  which,  in  all  these  cases,  the  right  of  election 
iu  the  cestui  que  trust  rests,  wholly  fail  in  a  case  where  a  trustee, 
having  an  option  to  invest  either  in  £3  per  cents,  or  on  real  security, 
neglects  bis  duty  and  carelessly  leaves  the  trust  funds  in  some  other 
state  of  investment.  In  such  a  case,  the  cestui  qtie  trust  cannot  say  to 
the  trustee  :  If  you  had  done  your  duty  I  should  now  have  had  a  certain 
sum  of  £3  per  cents,  or  the  trust  fund  would  now  consist  of  a  certain 
amount  of  £3  per  cents.  It  is  obvious  that  the  trustee  might  have 
duly  discharged  his  duty,  and  yet  no  sucli  result  need  have  ensued. 

Where  a  man  is  bound  by  covenants  to  do  one  of  two  things, 
and  does  neither,  there  in  an  action  by  the  covenantee,  the  measure  of 
damage  is  in  general  the  loss  arising  by  reason  of  the  covenantor 
having  failed  to  do  that  which  is  least,  not  that  which  is  most  benefi- 
cial to  the  covenantee ;  and  the  same  principle  may  be  applied  by 
analogy  to  the  case  of  a  trustee  failing  to  invest  in  either  of  two  modes 
equally  lawful  by  the  terms  of  the  trust. 

It  was  contended  at  the  bar  that,  in  such  a  case,  the  trustee  has 
by  his  neglect  lost  his  right  of  electing  between  the  two  modes  of 
investment;  that  he  was  always  bound  by  the  trust  to  exercise  his  dis- 
cretion in  the  mode  most  beneficial  for  the  objects  of  the  trust ;  and 
that,  having  omitted  to  do  so  at  the  time  when  the  option  was  open  to 
him,  he  can  no  longer  do  it  when  he  is  called  to  account  for  his  neglect, 
and  when  he  can  no  longer  exercise  an  unbiassed  and  impartial  option. 
The  fallacy  of  this  argument  consists  in  assuming  that,  in  the  case 
supposed,  the  trustee  is  called  on  to  exercise  any  option  at  all.  He  is 
not  called  on  to  exercise  an  option  retrospectively;  but  is  made  re- 
sponsible for  not  having  exercised  it  at  the  proper  time,  for  not  having 
made  one  of  two  several  kinds  of  investment.  And  a  reason  for  his 
being  in  such  case  chargeable  only  with  the  money  which  should  have 
been  invested,  and  not  with  the  £3  per  cents  which  might  have  been 
purchased,  is,  that  there  never  was  any  right  in  the  cestui  qtie  trust 
to  compel  the  purchase  of  £3  per  cents.  The  trustee  is  answerable 
for  not  having  done  what  he  was  bound  to  do,  and  the  measure  of  his 
responsibility  should  be  what  the  cestui  que  trust  must  have  been  en- 
titled to,  in  whatever  mode  that  duty  was  performed. 

The  ground  on  which  Lord  Langdale  proceeded  in  the  several  cases 
before  him  appears  to  have  been  that  when  the  trustee  has  failed 
to  discharge  his  duty  in  either  of  the  ways  which  were  open  to  him, 
the  cestuis  que  trustent  may  then  exercise  an  option  which  certainly 
did  not  belong  to  them  by  the  terms  of  the  trust:  i.  e.,  that  if  the 
trustee  has  failed  to  exercise  his  option,  then  the  right  of  election 
passes  to  the  cestuis  que  trustent,  although  not  given  to  them  by  the 
instrument  creating  the  trust.  But  on  what  foundation  does  this 
supposed  right  of  the  cestuis  que  trustent  to  exercise  such  an  option 
rest?  No  such  right  can  be  derived  from  the  principle  that  the  cestuis 
que  trustent  are  entitled  to  compel  the  trustee  to  do  what  he  was  bound 
to  do,  for  he  was  not  bound  to  purchase  £3  per  cents.     Nor  from  the 


SECT.  IV.]  ROBINSON   V.   KOBINSOX.  501 

principle  that  the}'  may  follow  the  trust  funds  into  their  actual  state  of 
investmeut,  or  charge  a  higher  rate  of  interest  in  consequence  of  such 
investment,  for  the  foundation  of  the  complaint  is,  that  the  funds 
have  not  been  invested  at  all.  The  only  plausible  foundation  for  the 
doctrine  which  occurs  to  us  is  this:  The  trustee  was  bound  to  exercise 
his  option  not  capriciously,  but  in  the  mode  likely  to  be  most  beneficial 
to  the  cestuis  que  trustent.  And  then*  interests  appear  m  the  result  to 
be  best  served  by  requiring  an  investment  in  £3  per  cents.  But  this 
reasoning  seems  founded  on  a  fallacy.  The  selection  of  the  £3  per 
cents  is  thus  made  to  depend  not  on  any  option  in  their  favor  which 
the  trustee  was  originally  bound  to  exercise  ;  but  on  the  acciilent  of 
their  subsequent  rise  in  value,  a  principle  of  decision  from  which,  with 
all  deference,  we  differ.  If  such  a  principle  were  to  be  applied,  then, 
as  it  was  well  put  at  the  bar,  if  in  the  present  case  there  had  been  a 
discretion  to  invest  in  railway  shares,  the  cestuis  que  trustent  might 
perhaps  now  fix  on  the  shares  of  some  particular  railway  which  have 
risen  very  highly  in  value,  and  say  the  investment  might  have  been 
and  so  ought  to  have  been,  on  that  particular  security. 

On  the  whole,  therefore,  we  cannot  discover  any  such  right  of 
option  as  is  contended  for  in  the  cestuis  que  trustent^  not  on  the 
ground  of  their  being  entitled  by  the  terms  of  the  trust  to  compel 
the  trustee  to  make  an  investment  in  £3  per  cents,  for  no  such  obli- 
gation was  imposed  on  him ;  not  on  the  ground  of  their  being  en- 
titled to  adopt  or  insist  on  any  actual  investment,  for  no  investment 
was  made ;  not  on  the  ground  of  any  obligation  on  the  part  of  the 
trustees  to  select  the  £3  per  cents  as  the  most  beneficial  mode  of 
investment,  for  the  advantage  of  the  £3  per  cents  arises  from  their 
accidental  and  subsequent  rise  in  value,  and  not  from  any  necessary 
superiority  at  the  time  when  the  investment  ought  to  have  been  made.* 

1  Knott  V.  Coffee,  16  Beav.  77  Accord. 
See  Andrew  v.  Schmitt,  64  Wis.  664. —  Ed. 


502  JONES   V.    LEWIS.  [CIIAP.  V. 

SECTION   V. 

The  Duty  of  Custody  of  the  Trust-res. 

MORLEY  V.   MORLEY. 
In  Chancery,  before  Lord  Finch,  C,  February  15,  1G78. 

[Reported  in  2  Cases  in  Chancery,  2.] 

The  defeudant  was  trustee  for  the  plaintiff,  an  ii\fant,  and  received 
for  liim  £40  in  gold  ;  a  servant  of  the  defendant  living  in  the  honse 
with  him  robbed  his  master  of  £200,  and  the  £40  out  of  his  house.  The 
robbery,  viz.,  that  the  defendant  was  robbed  of  money  was  proved; 
the  sum  of  £40  was  proved  by  only  the  defendant's  oatlj. 

Lord  Chancellor.  He  was  to  keep  it  but  as  his  own,  and  allowed 
it  on  account ;  so  in  case  of  a  factor ;  so  in  case  of  a  person  robbed, 
for  he  cannot  possibly  have  other  proof.  ^ 


JONES  V.   LEWIS. 
In  Chancery,  before  Lord  Hardwicke,  March  18,  1750. 

[Reported  in  2  Vesey,  240.] 

A  decree  had  been  against  defendant's  husband  (to  whom  she  was 
administratrix)  for  a  general  account  of  assets,  and  for  payment  of 
the  balance. 

Exception  by  defendant  to  the  report ;  for  that  certain  goods,  which 
had  been  delivered  by  her  to  her  solicitor,  and  offered  to  plaintiff,  liad 
been  since  stolen  from  her  solicitor ;  for  which  she  therefore  was  not 
accountable ;  that  thej'  came  into  her  hands  in  nature  of  a  trustee, 
who  kept  them  as  his  own,  and  was  robbed  thereof,  and  should  not  be* 
responsible.  Coggs  v.  Bernard,^  Morely  v.  Morely,^  and  the  doctrine 
in  Southcot's  case,*  long  looked  on  not  to  be  law. 

E  con.  Plaintiff  is  not  answerable  for  any  loss  by  means  of  de- 
fendant's negligence ;  for  she  delivering  the  goods  to  her  solicitor  was 

1  Jobson  V.  Palmer,  '93,  1  Ch.  71 ;  U.  S.  v.  Thomas,  15  Wall.  337,  343  ;  Newsom  v. 
Thornton,  66  Ala.  311  (semble) ;  State  v.  Meagher,  44  Mo.  3.56  ;  Fudge  v:  Durn,  51  Mo. 
2C4  ;  Stevens  v.  Gage,  55  N.  H.  175  ;  Furman  v.  Coe,  1  Cai.  Cas.  96  ;  Carpenter  v.  Car- 
penter, 12  R.  I.  544  ;  Mikell  v.  Mikell,  5  Rich.  Eq.  220;  McKnight  v.  McKnight,  10 
Rich.  Eq.  157  Accord. 

But  if  a  trustee  negligently  fail  to  put  the  trust  property  in  a  reasonably  safe 
place,  he  is  liable  if  the  property  is  subsequently  stolen.  Cornwell  v.  Deck,  8  Hun, 
122.     See  Lehman  i;.  Robertson,  84  Ala.  489.  —  Ed. 

2  Lord  Ray.  909.  3  2  C.  C  2.  *  4  Co.  83. 


SECT,  v.]  JONES   V.    LEWIS.  503 

a  voluntary  act,  which  she  had  no  occasion  to  do,  but  should  have  kept 
them  in  her  own  hands.     Though  persons  come  by  right  of  executor- 
ship or  representation  to  the  possession  of  goods,  they  are  not  em- 
powered to  entrust  them  to  another ;  nor  ought  she  to  have  detained   * 
them  after  the  decree,  which  had  determined  the  right ;  they  are  kept   , 
therefore  at  her  peril.  i 

Lord  Chakcellor.  I  will  now  consider  this  case  as  if  the  robbery 
had  been  without  any  tender  of  the  goods  at  all  to  the  plaintiff.  It  is 
certain,  that  if  bailee  of  goods,  against  whom  there  is  an  action  of 
account  at  law,  loses  the  goods  by  robbery,  that  is  a  discharge  in  an 
action  of  account  at  law;  and  it  is  proved  (and,  I  think,  reasonably), 
that  if  a  trustee  is  robbed,  that  robbery  properly  proved  shall  be  a  dis- 
charge, provided  he  keeps  ihem  so  as  he  would  keep  his  own.  So  it  is  as 
to  an  executor  or  administrator,  who  is  not  to  be  charged  further  than 
goods  come  to  his  hands ;  and  for  these  not  to  be  charged,  unless  guilty 
of  a  devastavit ;  and  if  robbed,  and  he  could  not  avoid  it,  he  is  not  to 
be  charged,  at  least  in  this  court.  How  it  would  be  at  law  I  know  not ; 
for  I  know  no  case  of  that  at  law.^  The  defendant  is  administratrix  : 
supposing  these  goods  had  been  in  her  own  custody,  anil  she  had  beeu 
robbed,  I  am  clear  of  opinion,  if  that  fact  be  made  out  (which  can  only 
be  by  circumstances,  as  it  is  probably  made  out  here),  she  ought  to 
have  been  discharged  of  these  goods  ;  and  that  notwithstanding  no 
tender  thereof ;  for  that  was  a  superabundant  act ;  for  it  is  a  decree 
against  her  husbuud  not  for  delivery  of  the  goods,  but  for  a  gen- 
eral account  of  assets,  and  nothing  directed  to  be  paid  but  what  was 
found  on  the  balance.  The  only  doubt  then  is,  that  they  were  not  lost 
out  of  her  custody,  but  her  solicitor's,  where  they  were  put  by  her  for 
a  particular  purpose.  I  do  not  know  that  a  bailee,  executor,  adminis- 
trator, or  trustee,  are  bound  to  keep  goods  always  in  tlicir  own  hamls. 
They  are  to  keep  them  as  their  own,  and  take  the  same  care;  if  there- 
fore a  man  lodged  trust-money  with  a  banker,  if  lost  in  many  cases 
the  court  has  disciiarged  the  trustee,  especially  if  lost  out  of  the  bank- 
er's hands  by  rol)bery.  In  the  present  case  what  has  been  done  is, 
what  she  would  have  done  witii  her  own  ;  leaving  tliem- with  her  solici- 
tor in  order  to  be  delivered  to  plaintiff  when  proper  so  to  do;  and  why 
might  she  not  do  that?  It  is  the  same  as  if  they  had  been  in  iier  own 
custody;  and  Iht-rc  is  no  pretence  that  they  were  collusivcly  put  into 
the  hands  of  her  solicitor.  It  would  be  too  hard  to  charge  her  witli 
these  things  lost;   this  exception  theref(jre  must  be  allowed." 

1 

'  See  frofwe  v.  Smith.  7  Kn«t,  2\r,,  2.')H  per  Liml  Kllf-ntKironph.  —  F.it. 

2  Haw  V.  fiitt'T^,  '.t  Hinp.  9fi;  Jnli  »■.  J..li,  0  f'h.  1).  .'ifiS  ;  Jotmnn  >■.  I'lilmrr.  'M,  \  <^h 
71  ;  Mrf'ahe  v.  F-.wl<'r.  «4  N.  Y.  .114  ;  f'arpenter  u.  Carpenter,  12  K.  I.  r)44  ;  McKuiglit 
V.  McKiiight,  10  Kirli.  Kq   1.^7  Accord.  —  Ki>. 


504  EX  PARTE  OGLE.  [CHAP.  V. 


Ex  PARTE  OGLE.     In  re  PILLING. 

In  Chancery,  before  Sir  Wm.  James,  and  Sir  G.  Mellish, 

L.  JJ.,  May  30,  1873. 

[Reported  in  Law  Reports,  8  Chancer  i/  Appeals,  711.] 

In  this  case  there  were  two  appeals  from  a  decision  of  the  Judge  of 
the  County  Court  at  Manchester. 

The  question  in  dispute  arose  under  a  deed  of  assignment  dated 
the  21st  of  October,  1864,  by  which  David  Pilling,  a  leather  factor  at 
Manchester,  assigned  all  his  property  to  Edward  Smith,  as  a  trustee 
for  his  creditors.  The  deed  was  assented  to  by  the  requisite  majority 
of  creditors,  and  was  registered  under  the  192d  section  of  the  Bank- 
ruptcy Act,  1861  (24  &  25  Vict,  c  134). 

Mr.  Ogle  and  other  creditors  charged  the  trustee  with  negligence 
and  mismanagement  of  the  estate,  and  claimed  to  surcharge  him  in 
the  accounts  which  he  had  rendered  in  several  particulars,  and  the 
charges  were  referred  to  the  registrar  to  report  on  the  facts.  The 
effect  of  his  report,  dated  the  7th  of  May,  1872,  so  far  as  material 
to  the  present  appeal,  was  as  follows :  — 

Item  1.^  As  to  wine  sold  to  the  debtor  or  allowed  to  remain  in  his 
hands. 

The  trustee  discovered  on  the  19th  of  November,  1864,  that  there 
were  519  bottles  of  wine  and  84  of  brandy  in  the  debtor's  possession 
unaccounted  for.  The  trustee  instructed  his  solicitor,  Mr.  Simpson,  to 
take  legal  steps  for  the  recovery  of  the  property. 

On  the  3d  of  May,  1865,  the  value  of  the  wine  and  spirits  amounted 

to  about  £130.     The  trustee  made  several  written  and  personal  appli- 

\  cations  to  his  solicitor  to  recover  the  property  ;  but  no  legal  steps  were 

J  taken.     Most  of  the  stock  was  consumed  by  the  debtor.     In  August, 

il  1866,  he  executed  another  deed  of  composition  with  his  creditors  for 

Sd.  in  the  pound. 

Mr.  Simpson's  managing  clerk  stated  that  the  reason  why  more  ac- 
tive measures  were  not  adopted  was  that  Mr.  Simpson  believed  that 
the  debtor  intended  eventually  to  paj'  for  the  wine,  and  that  he  wished 
to  treat  him  in  a  friendly  spirit  and  not  hostilely. 

The  charges  arising  out  of  the  report  were  brought  before  the  Judge 

of  the  County  Court,  and  his  Honor  made  an  order  to  the  following 

\  effect  on  the  items  which  formed  the  subject  of  appeal :  — 

X  Item  1.     That  the  trustee  should  be  surcharged  with  £130  as  the 

\  value  of  the  wine  and  spirits,  with  interest  at  £5  per  cent  from  the 

3d  of  May,  1865. 

3Ir.  DeGex,  Q.  C,  and  Mr.  Baglej/,  then  opened  the  cross  ap- 
peal :  — 


^  The  report  of  the  case  on  the  other  items  is  omitted.  —  £d. 


^ 


SECT,  v.]  FIELD    V.   FIELD.  505 

As  to  item  1  :  The  trustee  was  not  to  blame  in  permitting  the  wine 
to  remain  in  the  debtor's  possession.  He  did  all  that  he  could  by 
placing  the  matter  in  the  solicitor's  hands.  It  is  very  doubtful  whether 
the  court,  under  the  Act  of  1861,  had  power  to  order  a  debtor  to  give 
up  property  which  he  kept  possession  of.  At  all  events  there  is  no 
authority  for  charging  the  trustee  with  interest  on  the  value  of  the 
wine.  A  trustee  is  never  charged  with  interest  unless  he  has  himself 
possessed  and  used  the  property.  Tebbs  v.  Carpenter.^  In  Grove  v. 
Price  ^  no  interest  appears  to  have  been  charged,  although  the  money 
was  clearly  lost  by  the  trustee's  negligence. 

Sir  William  James,  L.  .J.  It  appears  to  me  that  this  was  not 
merely  a  debt,  but  a  deliberate  breach  of  trust.  No  proceedings  were 
taken  against  the  debtor  because  he  was  a  friend  of  the  solicitor.  The 
County  Court  Judge  was,  in  my  opinion,  right  in  charging  the  trustee, 
not  only  with  the  value  of  the  wine  but  with  interest,  on  the  groun 
that  it  was  a  breach  of  trust. 

Sir  G.  Mellish,  L.  J.,  concurred.* 


FIELD  V.  FIELD. 
In  Chancery,  before  Kekewich,  J.,  December  1,  1893. 

[Reported  in  Law  Reports  1894,  1  Chancery,  425.] 

The  plaintiff,  Joshua  Field,  tenant  for  life  of  a  trust  fund  investcvl 
in  the  name  of  the  defendants,  the  trustees,  on  a  mortgage  of  a  build- 
ing estate,  moved  for  an  injunction  to  restrain  the  defendants  from  per- 
mitting the  title  deeds  to  remain  in  the  cnstmly  of  their  Kolicitors,  or, 
unless  the  deeds  were  depo.sitcd  l)y  the  (U'fendants  at  a  bunk  in  their 
joint  names,  from  permitting  the  same  to  remain  in  the  custody  of  any 
person  or  persons  other  than  the  defendants  or  one  of  them.* 

Kekewicii,  J.  This  motion  raises  a  (jucstion  of  practical  impor- 
tance, and  one  of  extreme;  interest  to  solicilors,  and  Htill  more  to 
those  numerous  clients  of  theirs  who  are  trustees.  ,My  lirst  inclina- 
tion was  to  say  that  a  queHtion  of  such  a  vast  importance  must  he 
carefully  considered,  and  that  it  would  not  be  right  to  express  an 
opinion  upon  it  until  after  consideration,  and  in  langii.age  cirefully 
weighed  ;  but  further  discussion  has  convinced  me  that  I  ought  to  dis- 
pose of  this  motion,  not  as  dealing  with  an  abstract  (pieHtion,  but 
rather  with  reference  to  the  circumstances  of  this  particular  case, 
instead  of  laying  down  any  general  rule.  I  have  before  me  an  aUi- 
davit  of  four  gentlemen  with  regard  to  the  convenience  of  the  deposit 

1   1  Madd.  290.  "  20  Rcav.  \(V\. 

"  Harrison  v.  ATock,  10  Ala.  IS.*!.  K>  A)a.  filfi  Armul.  —  Kn. 

♦  The  Btalenient  of  facts  is  abridged,  and  the  arguments  omitted.  —  Ed. 


506  FIELD    V.    FIELD.  [CIIAP.  V. 

of  trust  decd°  with  solicitors  aud  the  practice  of  the  profession. 
These  four  gentlemen  stand  high  in  the  profession,  and  it  would  be 
difficult  to  find  four  others  better  qualified  to  depose  as  to  the  practice 
and  the  convenience  of  business ;  but  they  and  the  notice  of  motion 
alike  seem  to  me  to  evade  what,  to  my  mind,  is  the  real  point.  A 
comparison  has  been  made  between  the  deposit  of  deeds  in  a  solicitor's 
office  aud  the  deposit  of  them  in  a  bank.  The  question  is  not  whether 
the  trust  deeds  may  be  conveniently  deposited  in  a  solicitor's  office, 
or  in  a  bank,  or  anywhere  else,  but  whether  the  deeds  ought  to  be 
under  the  personal  control  of  the  trustees.  If  solicitors  are  prepared 
to  make  in  their  own  office,  or  elsewhere,  arrangements  for  depositing 
trust  deeds,  so  that  they  may  be  under  the  control  of  trustees,  I  can- 
not myself  see  that  this  is  open  to  any  objection,  and  the  suggestion 
as  to  keeping  the  deeds  at  a  bank  has  not  much  to  do  with  the  case, 
aud  only  introduces  confusion. 

The  general  principle,  in  my  opinion,  is  that  trustees  must  have 
their  muniments  of  title,  as  well  as  then-  securities,  under  their  own 
control.  I  have  held  in  one  case  some  time  ago,  Webb  v.  Jonas, ^  that 
that  this  was  enough  to  prevent  trustees  investing  on  a  contributory 
first  mortgage,  because  trustees  investing  on  any  particular  mortgage 
security  are  bound  to  have  the  trust  money  and  the  security  in  their 
own  names,  and  if  the  money  and  the  security  are  in  the  names  of 
others  they  are  not  fulfilling  that  obligation.  The  same  thing  applies 
to  documents  and  deeds  in  their  possession.  They  are  intrusted  with 
the  custody  of  them,  and  they  are  bound  within  reasonable  limits  to 
see  that  the  deeds  are  kept  in  a  safe  place,  and  that  no  one  else  can 
take  them  away.  But  to  that  obligation  there  must  be  reasonable 
limits.  In  order  to  realize  the  trust  estate,  the  deeds  must  be  in  the 
custody  of  the  solicitor  to  the  trustees.  He  has  to  make  abstracts  of 
them,  to  make  an  examination  of  the  deeds  abstracted,  and,  if  the 
property  is  sold  in  lots,  the  purchasers  must  have  the  opportunity  of 
examining  the  deeds  with  the  abstracts,  if  they  wish,  and  even  a 
second  and  a  third  examination  may  be  necessary  before  completion. 
It  would  be  a  monstrous  thing  to  say  that  the  trustees  have  to  keep 
the  deeds  all  that  time  in  a  box  with  perhaps  three  or  four  keys,  so 
that  if  any  purchaser  wishes  to  consult  the  deeds  all  the  trustees  will 
have  to  attend  in  person.  That  strikes  one  immediately  as  showing 
that  reasonable  limits  to  the  trustees'  obligation  should  be  applied. 

In  the  present  case  I  have  the  trustees  of  a  will,  having  their  trust 
fund  invested  on  mortgage.  It  happens  that  the  tenant  for  life  under 
the  settlement  is  the  mortgagor,  but  that  is  immaterial  for  the  present 
purpose.  The  mortgaged  property  is  a  building  estate  in  course  of 
development ;  we  all  know  what  that  is.  From  time  to  time  building 
agreements  have  to  be  prepared  and  leases  granted,  and  the  deeds  have 
to  be  consulted  in  order  to  see,  for  instance,  that  the  parcels  are  all 

1  39  Ch.  D.  660. 


SECT,  v.]  HELD   V.   FIELD.  507 

right,  or  that  the  powers  have  been  properly  observed,  or  that  the 
boundaries  of  a  plot  in  a  second  intended  lease  do  not  overlap  the 
boundaries  in  the  first,  and  so  forth.  It  is  practically  impossible  to 
deal  with  such  questions  unless  the  solicitor  to  the  ti"ustees  has  the 
deeds.  On  the  other  hand,  there  is  possible  danger  in  that  course. 
Rules  are  made  not  only  for  the  guidance  of  solicitors  who  are  honest, 
as  in  the  overwhelming  majorit}'  of  instances  they  are,  but  also  with 
reference  to  dishonest  solicitors,  of  whom,  unfortunately,  there  are 
some.  It  is  extremely  ditiicult  to  lay  down  any  general  rule,  and  to 
say  where  any  general  rule  may  be  departed  from.  In  my  opinion  it 
comes  to  this,  —  that  the  solicitor  may  do  what  is  reasonable  and  may 
advise  the  trustees  as  to  what  is  reasonable.  If  there  is  a  trust  shut 
up  for  years,  as  often  happens,  and  there  is  nothing  in  it  to  be  done,  1 
do  not  see  why  the  deeds  should  not  be  locked  up  in  a  box  in  a  bank 
or  a  safe  deposit,  and  the  trustees  keep  the  keys,  and  that  is  the  proper 
course  to  pursue.  If,  on  the  other  hand,  they  are  wanted  from  time  to 
time,  I  do  not  think  the  trustees  are  acting  unreasonably  in  giving  their 
solicitor  power  to  do  what  is  right  and  necessary  for  the  despatch  of 
business.  If  the  particular  business  comes  to  an  end  and  there  is  no 
further  occasion  to  refer  to  the  deeds,  then  they  can  be  put  into  a  safe 
place.  I  am  now  referring  to  title-deeds  only.  With  regard  to  bonds 
and  certificates  payable  to  bearer,  I  have  not  the  slightest  doubt  that 
they  ought  not  to  be  under  the  control  of  a  solicitor,  or  any  other 
agent.*  The  trustees  are  responsible  for  them,  and  they  must  keep 
them,  not  necessarily  in  their  own  custody,  but  in  some  place  where 
they  cannot  be  got  at  without  the  consent  of  the  whole  body. 

I  am  not  prepared  to  make  any  order  on  the  motion  ;  but  the  matter 
has  been  fairly  argued,  and  therefore  I  make  no  order,  except  that  the 
X)st3  of  the  motion  are  to  be  costs  in  the  action. 

1  Matthews  1-.  Brice,  G  Beav.  239  Accord.  —  Ed. 


'<r^^Y^ 


(  ' 
t^ 


"^    '  2/^    .7>2^- 


'^ 


^vvW 


J<. 


DOS  MORTIMER   l\   IRELAND.  [CHAP.  V. 


SECTION  VI. 

The  Duty  not  to  Delegate  the  Trust  to  Another. 
ANONYMOUS. 

[Reported  in  3  Sivanston,  79,  n.  (a).] 

Sir  J.  Jekyll  cited  a  late  case  at  the  Rolls,  where  one  who  was  a 
trustee  for  a  woman  and  her  children  did,  with  the  woman's  consent, 
assign  his  trust  to  another  who  was  guilty  of  a  breach  of  trust,  and 
the  first  trustee  decreed  to  make  satisfaction,  because  trustees  cannot 
divest  themselves  of  their  trust  at  their  pleasure.^ 


MORTIMER  V.  IRELAND. 
In  Chancery,  before  Lord  Cottenham,  C,  July  29,  1847. 

[Reported  in  11  Jurist,  721.] 

Lord  Chancellor.'^  The  argument  amounts  to  this,  that  the  execu^ 
tor  of  a  trustee  is  of  right  a  trustee.  Whether  the  property  is  real  or 
personal  estate  is  no  matter,  for  suppose  a  man  appoints  a  trustee  of 
real,  and  personal  estate  simpliciter,  adding  nothing  more,  this  can- 
not make  his  representative  a  trustee.  The  case  before  the  Master 
of  the  Rolls  *  was  quite  different,  for  there  the  court  proceeded  on  the 
intention  manifested,  that  the  trust  should  be  performed  by  the  as- 
signs of  the  survivor.  The  property  may  vest  in  the  representative, 
but  that  is  quite  another  question  from  his  being  trustee.  The  testator 
may  select  the  heir  to  succeed  to  the  trust,  but  he  only  can  do  so. 
Here  there  are  two  persons  appointed  trustees  ;  both  die  ;  thus  there  is  no 
trustee,  and  it  is  for  the  court  to  appoint  new  ones.  The  testator  having 
given  no  indication  of  intention,  the  court  must  refer  it  to  the  Master. 
The  decree  of  the  Vice-Chancellor  is  right  in  its  form.  The  appeal 
must  be  dismissed  with  costs.'* 

1  Hardwick  v.  Mynd,  1  Anst.  109  ;  Adams  v.  Clifton,  1  Russ.  297  Accord.  —  Ed. 

2  Onlv  the  opinion  of  the  court  is  given.  A  testator  appointed  A.  and  B.  his  ex- 
ecutors and  trustees,  but  made  no  mention  of  their  heirs  or  executors.  A.,  the  surviv- 
ing trustee,  devised  the  trust  property  to  C,  his  executor.  The  question  was  whether 
C.  could  execute  the  trust  originally  vested  in  A.  and  B.  —  Ed. 

8  Titley  v.  Wolstenholme,  7  Beav.  425. 

*  In  re  Ingleby,  L.  R.  13  Jr.  326  (where  the  heir  of  the  original  trustee  was  not 
permitted  to  perform  the  trust)  Accord,  —  Ed. 


SECT.  YL]  COOKE   V.   CRAWFORD.  509 

COOKE  V.  CRAWFORD. 
In  Chancery,  before  Sir  Lancelot  Shadwell,  V.  C,  July  12,  1842. 

[Reported  in  13  Simons,  91.] 

Bill  by  the  devisee  of  "William  Hall  the  youuger,  for  specific  per- 
formance of  a  contract  of  purchase.^ 

The  Vice-Chancellor.  I  am  of  opinion  that  the  demurrer  in  this 
case  must  be  allowed  ;  for  it  is  plain  that  the  persons  whom  the  sur- 
viving trustee  has  thought  proper  to  appoint  to  execute  the  trusts  of 
the  testator's  will,  are  persons  to  whom  no  authority  was  given  for 
that  purpose  by  the  testator,  and  there  is  no  case  in  which  a  person 
not  mentioned  by  the  party  creating  the  trust  has  been  held  entitled 
to  execute  it. 

I  have  always  uuderstood,  ever  since  the  point  was  decided  in  Haw- 
kins V.  Kemp  '^  (or,  rather  was,  as  the  judges  said  in  that  case,  pro- 
perly abandoned  by  the  defendant's  counsel  as  not  capable  of  being 
contended  for),  that,  where  two  or  more  persons  are  appointed  trustees, 
and  all  of  them,  except  one,  renounce,  the  trust  may  be  executed  by 
that  one.  That  decision,  if  it  may  be  so  called,  has  been  approved  of 
by  Lord  Eldon  and  other  judges. 

Now,  in  the  present  case  the  testator  has  devised  his  estates  in  the 
county  of  Lincoln  to  his  son,  AVilliam  Hall,  and  his  friends,  James 
Burkitt  and  William  Woolley,  upon  trust  that  they  and  the  .survivors 
or  survivor  of  them  or  the  heirs  of  such  survivor,  should,  as  soon  as 
conveniently  might  l)e  after  liis  decease,  but  at  their  discretion,  sell  liis 
estates  either  by  pul)lic  auction  or  by  private  contract,  and  either 
altogether  or  in  parcels,  for  such  price  or  prices  as  they  should  con- 
sider the  value  tliereof ;  and,  for  the  purpose  of  effecting  any  and  every 
such  sale,  he  has  enipowertMl  liis  trustees  and  their  heirs  to  enter  into 
and  execute  all  necessary  contracts,  conveyances,  and  other  assurances 
to  or  in  favor  of  the  purchaser  or  purchasers  of  bis  estates.  Tlien  he 
proceeds  to  declare  that  the  written  receipt  or  receipts  of  tlie  trustees, 
or  of  the  survivors  or  survivor  of  them,  or  the  heirs,  executors,  or 
administrators  of  such  smvivor,  ."hall  I)e  good  discharges  to  the  jnir- 
chasers. 

It  is  observable  that  the  testator  has  not  used  the  word  'assigns* 
either  in  the  clause  in  which  he  has  created  tlie  trust  for  sale  or  in 
either  of  the  two  clauses  that  follow  it,  in  which  he  points  out  tlie 
machinery  by  which  the  sale  is  to  be  effected.  He  does  not  inlrodiice 
that  word  until  he  begins  to  speak  of  something  that  is  to  be  done  after 
the  sale  has  taken  place,  that  is,  until  lie  declares  llie  trusts  upon  which 
the  proceeds  of  the  sale  are  to  be  luM.  Therefore,  it  iH  plain  that 
when  William  Hall,  who,  by  the  disclaimer  of  iJurkitt  and  Woolley, 

'  Only  tho  oj)iuion  of  the  court  is  given.  —  Ei>. 
2  3  Ea.st.  410. 


510  COOKE  V.   CRAWFORD.  [cHAP.  V. 

became  the  sole  trustee,  thought  fit  to  devise  the  legal  estate  that  was 
vested  iu  him,  he  did  au  act  which  he  was  not  authorized  to  do. 

And  here  I  must  enter  my  protest  against  the  proposition  which  was 
stated  iu  the  course  of  the  argument  that  it  is  a  beneficial  thing  for  a 
trustee  to  devise  an  estate  which  is  vested  in  him  in  that  character, 
^ly  opinion  is  tliat  it  is  not  beneficial  to  the  testator's  estate  that  he 
should  be  allowed  to  dispose  of  it  to  whomsoever  he  may  think  proper ; 
uor  is  it  lawful  for  him  to  make  any  disposition  of  it.  He  ought  to  per- 
mit it  to  descend,  for,  in  so  doing,  he  acts  iu  accordance  with  the 
devise  made  to  him.  If  he  devises  the  estate,  I  am  inclined  to  think 
that  the  court,  if  it  were  urged  so  to  do,  would  order  the  costs  of  get- 
ting the  legal  estate  out  of  the  devisee,  to  be  borne  by  the  assets  of 
the  trustee.^  I  see  no  substantial  distinction  between  a  conveyance 
by  act  inter  vivos^  and  a  devise ;  for  the  latter  is  nothing  but  a  post 
mortem  conveyance ;  and,  if  the  one  is  unlawful,  the  other  must  be 
unlawful. 

It  appears  to  me  that,  as  my  decision  in  Bradford  v.  Belfield  ^  has 
been  acquiesced  in,  the  question  raised  by  the  demurrer  iu  this  case  is 
concluded  by  that  decision :  but,  if  it  is  not,  then  the  authority  of 
Townsend  v.  Wilson^  is  binding  on  the  point.  And  my  opinion  is  that 
the  plaintiffs,  who  may  be  properly  called  the  assigns  of  William  Hall, 
the  sole  acting  trustee  of  the  testator's  will,  are  not  the  persons  to  ex- 
ecute the  trusts  of  that  will :  consequently,  I  shall  allow  the  demurrer.* 

1  But  see  Wilson  v.  Bennett,  5  De  G.  &  Sm.  475, 479.  See  further  the  last  paragraph 
of  note  4  on  this  page.  —  Eo. 

2  2  Sim.  264.  3  i  b.  &  Ad.  €08,  and  3  Madd.  261. 

*  If  property  is  vested  in  A.  and  his  heirs,  upon  a  special  trust,  the  heir  of  A.  is 
competent  to  execute  the  trust.  Re  Morton,  15  Ch.  Div.  143;  Re  Cunningham,  '91, 
2  Ch.  567.  But  the  trust  cannot  be  executed  by  an  assign  of  A.  under  a  conveyance 
inter  vivos.  Y.  B.  15  Hen.  VII.  11-22  ;  Keilw.  43,  b.,  Sugd.  Powers  (8th  ed.)  893  s.  c. ; 
Y.  B.  19  Hen.  VIII.  9-4;  Bradford  v.  Belfield,  2  Sim.  264;  Titley  ?;.  Wolstenholme, 
7  Beav.  425,  434-436 ;  Hall  v.  May,  3  K.  &  J.  585,  589  ;  Whittlesey  v.  Huglies,  39  Mo. 
13;  Pickett  v.  Jones,  63  Mo.  195,  199.  See  also  Wilson  u.  Towle,  36  N.  H.  129; 
Suarez  v.  Pumpelly,  2  Sandf.  Ch.  336  ;  Seely  r.  Hills,  49  Wis.  473.  Nor  by  a  testa- 
mentary assign.  Cooke  v.  Crawford,  supra  ;  Wilson  v.  Bennett,  5  De  G.  &  Sm.  475 ; 
Hall  y.May,  3  K.  &  J.  585,  587  ;  Stevens  v.  Austen,  3  E.  &  E.  685;  Druid  Co.  v. 
Oettinger,  53  Md.  46,  59.  Cooke  v.  Crawford,  supra,  was  rejected  as  an  authority 
by  Sir  George  Jessel,  M.  R.,  in  Osborne  v.  Rowlett,  13  Ch.  D.  774.  But  in  In  re  Mor- 
ton, 15  Ch.  Div.  143,  the  Court  of  Appeal  (.James,  Bramweli,  and  Baggallay,  L.  JJ.) 
was  inclined  to  stand  by  Cooke  v.  Crawford.  And  this  inclination  was  followed  in 
Ireland  in  In  re  Ingleby,  L.  R.  13  Ir.  326. 

If,  however,  property  is  vested  in  A.,  his  heirs  and  assigns,  upon  a  special  trust,  a 
devisee  of  A.  may,  as  a  testamentary  assign,  execute  the  trust.  Titley  v.  Wolsten- 
holme,  7  Beav.  425 ;  Ashton  v.  Wood,  3  Sm.  &  G.  436  (semble) ;  Hall  v.  May,  3  K.  & 
J.  585;  Whittlesey  v.  Hughes,  39  Mo.  13  {semble).  But  an  assign  by  act  inter  vivos 
cannot  take  the  office  of  trustee.     Titley  v.  Wolstenholm?,  7  Beav.  425,  4.34-436. 

Ina.smuchas  by  the  Conveyancing  Act,  1881,  §30,  a  devise  by  a  trustee  is  inoperative, 
and  the  title  of  a  sole  trustee,  or  a  sole  surviving  trustee,  passes  to  his  personal  repre- 
sentatives (supra,  346),  who  are  to  be  deemed  in  law  his  heirs  and  assigns,  within  the 
meaning  of  all  trusts  and  powers,  the  question  raised  in  the  principal  case  cannot 
again  come  up  in  England.  In  some  of  our  States  the  title  of  a  sole  trustee  of  realty 
is  not  devisable,  and  does  not  descend  to  the  heir,  but  vests  in  the  court.  —  Ed. 


SECT.  VI.  1  MATTER   OF   WADSWORTH.  511 


DOILY   V.  SHERRATT. 

In  Chancery,  before  Hon.  John  Verney,  M.  R.,  Miciiael.>l\s 

Term,  1735. 

[Reported  in  2  Equity  Abridgment,  742.] 

A.  BY  will  appoints  two  trustees,  to  whom  and  their  heirs,  executors, 
and  assigns,  he  devises  his  real  and  personal  estate  on  several  trusts ; 
and  in  case  one  die,  then  the  other  to  execute  the  same.  During  their 
joint  lives  if  one  refuse  to  act,  the  other  cannot  act  without  him ;  but 
the  trust  devolves  upon  the  court. 


In  the  Matter  of  WADSWORTH. 

In  Chancery,  New  York,  before  R.  H.  Walworth,  C,  November 

15,  1847. 

[Reported  in  2  Barbour,  Chancery,  381.) 

This  case  came  before  the  chancellor  upon  the  petition  of  James  S. 
Wadsworth  and  Elizabeth  Wadsworth  to  remove  W.  W.  Wadsworth  as 
one  of  the  executors  and  trustees  under  the  will  of  his  fatlier,  and  to 
appoint  another  trustee  iu  his  place,  so  far  as  related  to  the  trust  cre- 
ated for  the  benefit  of  the  petitioner,  E.  Wadsworth.  The  testator 
died  in  1844,  and  all  the  trustees  accepted  the  trust.  In  184G,  W.  W. 
Wadsworth  became  of  unsound  mind,  and  was  found  to  be  a  lunatic 
upon  a  commission  issued  to  inquire  into  the  fact.' 

The  CiiANXELLOK.  The  common  law  has  made  no  provision  for  the 
execution  of  a  joint  trust  by  one  of  the  trustees,  where  the  co-trustee, 
by  reason  of  lunacy  or  other  inability,  becomes  incompetent  to  execute 
the  trust.  This,  therefore,  appears  to  be  a  proper  ease  for  tlie  interpo- 
sition of  tlie  court  to  remove  the  lunatic  tnistet!,  under  the  provisioufi 
of  the  revised  statutes  ;  so  tiiat  the  Iriist?!,  botii  as  to  llie  residuary  i-state 
given  to  the  daughter,  and  as  to  that  given  to  the  grandson  of  tlie  t<*(*- 
tator,  may  be  executed,  either  by  the  remaining  trustee,  or  by  him  and 
Buch  other  person  as  may  be  substitutod  in  place  of  tlje  lunatic. 

*  The  statement  of  fortti  aud  tho  opiuion  arc  abridged.  —  Eu- 


512  SWALE   V.   SWALE.  [CUAP.  V. 


SWALE   V.  SWALE. 
In  Chancery,  before  Sib  John  Romilly,  M.  R.,  June  28,  1856. 

[Reported  in  22  Beavan,  584.] 

The  Master  of  the  Rolls.'  I  think  the  plaintiff  is  entitled  to  a  re- 
ceiver. What  has  taken  place  is  thus  described  in  the  answer  :  Joseph 
Swale  and  Henry  Anderson  ask  Mr.  Ilolden  to  concur  with  them  in 
making  certain  investments  of  the  trust  property.  Mr.  Holden,  disa- 
greeing with  them,  refused  to  concur.  Thereupon,  they  continued  to 
act  in  the  trusts,  Without  conferring  with  or  consulting  him.  It  appears 
also,  that  they  have  actually  advanced  money  on  certain  securities, 
omitting  the  name  of  Mr.  Holden,  and  that  in  one  case  they  have 
taken  a  security  in  the  name  of  one  only.  This  court  cannot  approve 
of  one  trustee  investing  trust  money  in  his  own  name  exclusively  of 
the  others. 

It  is  suggested,  that  one  executor  may  act  without  the  concurrence 
of  the  others ;  but  it  is  impossible  to  say  that  this  can  be  treated  as  an 
executorship  account.  The  testator  died  four  years  and  a  half  ago,  and 
this  transaction  seems  to  have  taken  place,  not  in  their  character  of 
executors,  but  in  their  character  of  trustees.  I  think  that  the  plain- 
tiff, who  is  interested  in  the  property,  is  not  to  be  excluded  in  this 
manner. 

The  answer  of  the  two  ti'ustees  is  this:  They  say,  that  if  Mr. 
Holden  will  concur  with  them,  they  will  be  exceedingly  happy  to  go 
on  and  act  together,  but  that  if  he  differ  from  them,  then  that  they  must 
act  for  the^nselves.  Considering  the  manner  in  which  this  court  deals 
with  trustees,  whenever  a  breach  of  trust  is  committed,  and  the  way  in 
which  Holden  might  be  involved  in  one,  it  seems  not  unreasonable  that 
he  should  insist  on  his  view  of  the  case  being  adopted,  or,  at  least,  that 
the  view  of  the  other  two  trustees  should  not  control  his.'^  The  testator 
intended  to  have  the  assistance  and  discretion  of  three  trustees,  but 
here,  as  it  sometimes  happens,  they  do  not  act  amicably  together,  their 
united  assistance  and  discretion  cannot  be  obtained,  and  the  majority 

1  Only  the  opinion  of  the  court  is  given.  —  Ed. 

2  A  majority  cannot  determine  the  administration  of  a  private  trust.  Sloo  v.  Law, 
3  Blatchf.  459;  Loud  ?;.  Winchester,  52  Mich.  174;  Hill  v.  Jo-sselyn,  21  Miss.  597 ; 
Green  v.  Miller,  6  Johns.  39;  Philadelphia  Trust  y.  Philadelphia  Co.,  139  Pa.  534; 
Low  V.  Perkins,  10  Vt.  532.  Unless  authority  to  administer  the  trust  is  expressly 
given  to  the  majority  by  the  instrument  creating  the  trust,  as  in  Attorney-General 
V.  Cuming,  2  Y.  &  C.  139,  or  is  reasonalily  to  be  implied  from  the  peculiar  nature  of 
the  trust,  as  in  Sloo  v.  Law,  3  Blatchf.  459. 

In  public  trusts  the  will  of  the  majority  of  the  trustees  controls.  "Wilkinson  v. 
Malin,  2  Tyrwh.  544 ;  Perry  v.  Shipway,  4  De  G.  &  -J.  353,  1  Giff.  I ;  Cooper  v.  Gor- 
don, 8  Eq.  249;  Sloo  v.  Law,  3  Blatchf.  459  ;  Scott  v.  Detroit,  I  Doug.  (Mich.)  119; 
Hill  V.  Josselyn,  21  Miss.  597 ;  Green  v.  Miller,  6  Johns.  39  ;  Low  v.  Perkins,  10  Vt 
632.  — Ed. 


SECT.  VI.]  LANE   V.   DEBENHAM.  513 

act  alone  in  the  administration  of  the  trust.     In  that  state  of  things, 
the  plaintiff  is  entitled  to  have  the  receiver  appointed. 

A  necessity  is  shown  for  some  interposition  to  protect  this  property, 
not  merely  for  the  sake  of  the  two  tenants  for  life,  but  for  the  interest 
of  the  persons  who  may  hereafter  become  entitled,  who  are  not  sui 
Juris,  and  are  a  class  at  present  unascertained. 


LANE   V.   DEBENHAM. 
In  Chancery,  before  Wigram,  V.  C,  June  23,  1853. 

[Reported  in  11  Ilare,  188.] 

Vice-Chancellor. *  —  The  main  question  is,  whether  or  not,  there 
being  a  direct  trust  to  raise  £2,000  by  sale  or  otherwise,  —  and  thus  a 
discretion  to  be  exercised,  and  one  of  the  trustees  being  dead,  —  it  is 
thereby  rendered  impossible  for  the  surviving  trustee  to  execute  this 
trust  without  the  direction  of  the  court.*  The  money,  it  is  clear, 
must  be  raised ;  can  the  Surviving  trustee  raise  it  by  means  of  a  sale, 
or  is  it  necessary  to  come  to  the  court  in  order  that  the  court  may 
exercise  its  discretion  whether  it  is  to  be  by  sale,  by  mortgage,  or  by 
some  other  appropriation  ? 

Mr.  Walker  has  argued,  that,  whether  the  case  be  one  of  a  ix)wer  or  a 
trust,  if  it  be  confided  to  two  persons,  or  if  it  be  a  mere  trust  for  sale, 
if  it  be  said  that  the  sale  is  to  be  made  by  two  persons,  a  survivor  of 
the  two  can  never  execute  it.  The  argument  proceeds,  as  it  appears  to 
me,  upon  an  entire  disregard  of  the  distinction  between  powers  and 
trusts.  No  doul)t,  where  it  is  a  naked  power  given  to  two  i)er8on8, 
that  will  not  survive  to  one  of  them,  uiiIchs  tliore  be  express  words,  or 
a  necessary  implicatiou  upon  the  wh(jIo  will,  Hliowing  it  lo  be  the  inten- 
tion that  it  should  do  so.  But  the  ground  of  tbat  rule  is,  that,  where 
the  testator  has  disposed  of  liis  property  in  one  direction,  subject  to  a 
power  in  two  or  more  persons  ciiablitig  tlii^m  to  divert  it  in  another 
direction,  the  property  will  go  as  the  testator  lias  (irst  directed,  unless 
the  persons  to  whom  he  lias  given  the  power  of  controlling  the  disposi- 
tion exercise  that  power.  He,  therefore,  to  whom  tlie  testator  has 
given  the  property,  subject  to  having  it  taken  from  him  by  the  exerciso 
of  the  power,  has  a  right  to  say  that  it  nuiHt  W  cxeroised  tiimlo  ft 
forma.  It  is  therefore  a  rule  of  law,  thai,  in  all  cases  of  powers,  the 
previous  estate  is  not  to  be  defeated  unlcHS  the  power  be  exercised  in 
the  manner  specifically  directed.     When,  on  the  other  hand,  a  tcstntor 

'  Only  a  part  of  the  opinion  of  tho  court  in  jjivon.  —  En. 

*  The  plaintiff,  afl  nurviving  trnntoe,  had  raiwc<l  tho  pmperty  to  tie  noM  nt  anrtion, 
and  thf  flffpniLiiit  T-ano  waH  thf  jinrrli.vfr.  Thn  ilnfomliuit  thrTi  rained  the  ohjection 
that  the  plaintiff  could  not  lawfully  [ifrfurm  llio  trust  for  nale. —  Ki». 

33 


514  LANE   V.   DEBENHAM.  [CIIAP.  V. 

gives  his  property,  not  to  one  party  subject  to  a  power  in  others,  but 
to  trustoos,  upon  special  trusts,  with  a  direction  to  carry  his  purposes 
into  etTeot,  it  is  the  (Uity  of  the  trustees  to  execute  the  trust; — thus, 
if  the  direction  be  to  raise  a  certain  sum  of  money,  the  estate  is  thereby 
at  once  charged,  and  it  becomes  the  duty  of  the  trustees  to  raise  the 
charge  so  created.  If  an  estate  be  devised  to  A.  and  B.  upon  trust  to 
sell,  and  thereby  raise  such  a  sum,  it  is  I  think,  a  novel  argument, 
that,  after  A.'s  death,  B.  cannot  sell  the  estate  and  execute  the  trust. 

In  jS'icloson  v.  Wordsworth  *  and  Crewe  v.  Dicken,^  and  that  class 
of  cases,  the  question  was  a  different  one,  —  whether,  under  a  devise 
to  several  persons,  upon  trust  to  sell,  —  where  the  sale  takes  place  in 
the  lifetime  of  one  who  has  released  or  disclaimed  the  trust,  the  other 
trustees  in  whom  the  estate  is  vested  by  such  release,  can  execute  the 
trust.  In  Crewe  v.  Dicken,  there  was  a  gift  to  A.  and  B.,  in  trust 
that  they  and  the  survivor  of  them  should  sell.  One  disclaimed,  so 
that  in  fact  the  sale  w^as  not  made  by  the  survivor,  and  the  question 
was  whether  the  other  trustee  could  sell.  Mr.  Walker  said,  that  that 
class  of  cases  turned  on  the  construction  given  to  the  word  survivor ; 
but  it  was  not  only  that,  —  it  was  a  question  whether,  in  an  event  not 
contemplated  by  the  testator,  a  person  who  was  acting  in  the  trusts, 
and  in  whom  the  devised  estate  was  vested,  could  make  a  good  title. 
In  Niclosou  v.  Wordsworth,  Lord  Eldon  said,  he  had  not  much  doubt, 
and  that  in  his  own  case,  if  he  were  himself  the  purchaser,  he  would 
not  reject  the  title  on  that  ground  alone.  Where  there  is  a  power  given 
to  A.  and  B.,  and  no  estate  given  to  them,  if  A.  dies  or  renounces,  B. 
alone  cannot  make  a  title.  Lord  St.  Leonards  thus  states  the  rule : 
"It  is  regularly  true  at  common  law,  that  a  naked  authority  given  to 
several  cannot  survive ;  "  *  and  he  adds,  "  the  same  doctrine  applies  to 
powers  operating  under  the  Statute  of  Uses ;  "  and  he  cites  the  case 
from  Dyer,  "  where  cestui  que  use  in  fee,  before  the  Statute  of  Uses, 
willed  that  his  feoffees  A.,  B.,  and  C.  should  suffer  his  wife  to  take  the 
profits  for  her  life,  and  that  after  her  decease  the  premises  should  be 
sold  by  his  said  feoffees,  —  one  of  the  feoffees  died,  and  then  the 
wife  died :  "  and  it  was  ruled  that  the  survivors  could  not  selL  But 
if  an  estate  be  given  to  two  persons,  upon  trust  to  sell,  there  is  no 
doubt  the  survivor  may  sell.  The  case  is  then  within  the  rule  put  by 
Lord  Coke,  and  which  I  am  not  aware  has  ever  been  disputed,  that 
"  as  the  estate,  so  the  trust  shall  survive." 

The  trustee  has,  in  this  case,  executed  the  duty  which  the  trust  has 
cast  upon  him ;  and  I  am  asked  by  the  defendant  to  say,  that,  in  doing 
80,  he  has  committed  a  breach  of  trust,  because  he  has  proceeded  to 
raise  the  money  after  the  death  of  his  co-trustee.  If  I  were  to  lay 
down  such  a  rule,  where  is  it  to  stop?  It  would  follow,  that,  when- 
ever an  estate  is  vested  in  two  or  more  trustees  to  raise  a  sum  by  sale 
or  mortgage,  or  even  to  sell  by  auction  or  private  contract,  the  par- 

1  2  Swanst.  365.  «  4  Vea.  97.  '  1  Sugd.  Pow.  143. 


SECT.  YI.]  GRAHAM   V.   KING.  515 

ties  must,  after  the  death  of  one  of  the  trustees,  come  to  this  court  for 
directions  before  they  can  execute  the  trust.  The  court  has  not  better 
means  of  exercising  the  option  than  the  partj^  against  vrhom  the  objec- 
tion is  taken,  nor  are  its  means  so  goo<.l.  I  think,  as  I  have  observed, 
that  the  fallacy  of  the  argument  on  behalf  of  the  defendant  is  in  mix- 
ing together  the  rules  applicable  to  bare  powers  or  authorities,  and 
those  applying  to  interests.^ 


JAMES  GRAHAM   and  Wife   v.  A.   KING   and   Othi-rs. 

In  the  Supkeme  Court,  Missouri,  March  Term,  1872. 
[Reported  in  50  Missouri  Reports,  22.] 

Wagner,  J.,  delivered  the  opinion  of  the  court. 

The  respondents,  Graham  and  wife,  executed  a  deed  of  trust  on  a 
piece  of  land  lying  in  St.  Charles  county  to  secure  the  payment  of  a 
debt,  and  one  of  the  appellants.  King,  was  made  the  trustee  therein. 
The  deed  contained  the  usual  and  ordinary  provisions,  and  after  de- 
fault was  made  authorized  the  "  said  King  as  trustee  to  proceed  to  sell 
the  property,"  after  having  given  the  requisite  notice  in  some  news- 
paper published  in  St.  Charles  county.  Payment  not  being  made  when 
the  note  became  due.  King  advertised  the  property  for  sale  in  the  St. 
Charles  Democrat,  a  German  newspaper,  but  the  notice  was  inserted  iu 
the  English  language.-^  At  the  sale,  King,  the  trustee,  was  not  present, 
but  left  the  matter  in  the  hands  of  his  son,  a  minor.  It  is  alleged  that 
the  property  sold  for  greatly  l)clow  its  value,  and  an  injuiictiun  was 
asked  to  restrain  the  trustee  from  making  a  deed  to  the  purcliaser  at 
the  sale.  After  hearing  the  proof  the  court  below  decreed  a  peri)etual 
injunction. 

The  ollicc  and  duties  of  a  trustee  are  mailers  of  personal  ronfidencc, 
and  he  must  exercise  a  just  and  fair  discretion  in  doing  wliati'ver  is 
right  for  the  best  interest  of  the  deV»tor.  lie  must  in  person  supervise 
and  watch  over  tiie  sale,  and  adjourn  it,  if  necessary,  to  prt-vent  a 
sacrifice  of  the  property,  and  no  one  can  do  it  in  his  stead,  inilcss  em- 
])Owered   tlicreto  in   tlu"   instrument   conffrring   tiie  trust.      A  trustee 

'  AttorneyOfneml  v.  Oloj^jj,  Ainli.  .'>H4  ,  WiiUhdii  i.  I'l-.irson,  2  Ex.  R»l,  .'S94  : 
Brown  r.  .Smith,  4f»  L.  J.  Ch.  806  (.irwWr)  ;  I'otor  v.  Rovorly,  10  I'ot.  .^32  ;  I-oriii^H 
I'.  .Marsh,  6  Wall.  .'137;  I'nrsoiiH  r.  Boy<l,  20  AI.i.  112;  SauiiilfTH  i-.  Srhniacl/Ic,  4'.» 
( 'al  .')'.) ;  f  Jray  r.  T>yiirh,  8  Gill,  403  ;  Giitman  v.  Biitrkfr,  09  M<1.  7  ;  Franklin  v.  OH)f»)od, 
2  JohniH  Ch.  I,  14  .Johim.  .527  ;   ilolnir.nt  v.  O'Brien,  12  N.  Y.  3'.t4  .\<,,„<l. 

So  if  one  or  inf)re  of  M<'V<r;il  trnMti.is  iliHclaini,  the  oiIxtm  iii.i\  inrfiprm  tlif  trnHiH. 
See  SHiirn,  p.  230.  —  En. 

*  The  ronrt  docifled  that  tlio  nuti(  o  t<h>>nl(I  havo  heon  iiisurl<a  lu  au  l-ngli»h  ucw» 
paper.     The  opluion  on  tlii.t  point  is  oinittoil. —  Ei>. 


516  EX    PARTE   BELCHIER.  [CHAP.  V. 

cannot  delegate  the  trust  or  power  of  sale  to  a  third  person,  and  a  sale 
executed  by  such  delegated  agent  is  void.  Perry,  Trusts,  §  779,  and 
notes.  Judgment  ajfirnied.     The  other  Judy es  eoncur} 


Ex  PARTE  BELCHIER.     In  re  PARSONS. 
In  Chancery,  before  Lord  Hardwicke,  C,  March  14,  1754. 

[Rejwrted  in  Ambler,  2\8.^ 

On  cross  petitions,  and  exceptions  to  the  assignment  of  Conimis- 
Bioners  of  Bankrupt,  the  case  appeared  to  be  :  — 

Mrs.  Parsons  was  chosen  assignee  of  the  effects  of  her  son,  John 
Parsons,  a  bankrupt ;  and  there  being  a  large  quantity  of  tobacco  to 
be  sold,  she  employed  one  Wiggan,  a  broker,  to  sell  the  same  by  auc- 
tion. The  money  was  paid  to  the  broker,  and  after  remaining  in  his 
hands  for  about  ten  days,  he  died  insolvent ;  and  the  Coaimissloners 
were  of  opinion  the  assignee  ought  to  bear  the  loss. 

It  was  proved  by  several  persons'  depositions,  that  it  is  the  common 
method  of  business  to  sell  mercantile  goods  by  auction,  and  to  employ 
a  broker,  and  for  him  to  receive  the  money. 

1  Taylor  v.  Hopkins,  40  111.  442 ;  Grover  v.  Hale,  107  111.  638 ;  Howard  v.  Thornton, 
50  Mo.  291  ;  Bales  v.  Perry,  51  Mo.  449 ;  Vail  v.  Jacobs,  62  Mo.  130;  Brickenkamp  v. 
Rees,  69  Mo.  426 ;  Spurlock  v.  Sproule,  72  Mo.  503 ;  Powell  v.  Tuttle,  3  N.  Y.  396 
(only  one  of  several  trustees  at  the  sale,  —  overruling  King  v.  Stow,  6  Johns.  Ch.  323)  ; 
Fuller  V.  O'Neil,  69  Tex.  349,  82  Tex.  417;  Hawey  v.  Steptoe,  17  Grat.  289  (sembk) ; 
Smith  V.  Lowther,  35  W.  Va.  300  Accord. 

Connolly  v.  Belt,  5  Cranch,  C.  C.  405 ;  Smith  v.  Black,  1 15  U.  S.  308  (reversing  s.  c. 
McA.  &  M.  338,  only  one  of  several  trustees  present  at  the  sale) ;  Johns  v.  Sergeant,  45 
Miss.  332;  Tyler  v.  Herring,  67  Miss.  169  ;  Dunton  v.  Sharpe,  70  Miss.  850  Contra. 

The  trust  for  sale  cannot  be  delegated  to  a  stranger,  or  to  one  or  more  but  less  than 
all  of  the  trustees.  Bulteel  v.  Abinger,  6  Jurist,  410;  Pearson  v.  Jamieson,  1  Mc  L. 
197;  Saunders  v.  Webber,  39  Cal.  287;  Taylor  v.  Dickinson,  15  Iowa,  483  {sembk); 
White  V.  Watkins,  23  Mo.  423;  St.  Louis  v.  Priest,  88  Mo.  612  ;  Berger  v.  Duff,  4 
Johns.  Ch.  368;  Ilawley  v.  James,  5  Paige,  318,  487  ;  Newton  v.  Brownson,  13  N.  Y. 
587  (semble)  ;  Brennan  v.  Willson,  71  N.  Y.  502  ;  Bohleu's  Est.,  75  Pa.  304;  Fuller  v. 
O'Neil,  69  Tex.  349 ;  unless  by  the  instrument  creating  the  trust  authority  is  vested  in 
less  than  all.     Taylor  v.  Dickinson,  15  Iowa,  483. 

If  from  the  general  tenor  of  the  instrument  creating  the  trust,  it  is  fairly  to  be 
inferred  that  the  performance  of  the  trust  for  sale  iras  not  intended  to  be  limited  to 
the  original  trustees,  the  sale  may  be  made  by  their  lawful  successors.  Bradford  v. 
Monks,  132  Mass.  405  ;  Fish  v.  Coster,  28  Hun,  64. 

A  trustee  may  delegate  the  performance  of  a  merely  ministerial  act,  e.  rj.,  he  may 
grant  a  jxjwer  of  attorney  to  execute  a  deed  or  contract,  the  contents  of  which  have 
already  been  settled.  Gillespie  v.  Smith,  29  111.473;  Telford  v.  Barney,  1  Greene, 
575,  591  ;  Keim  v.  Liudley,  (N.  J.  1895),  30  Atl.  K.  1063  ;  Hawley  v.  James,  5  Paige, 
487;  Blight  v.  Schenck,  lOBarr,  285;  Bohlen's  Est.,  75  Pa.  304,  317. 

See  Skipwith  v.  Bobinson,  24  Miss.  688;  Black  v.  Erwin,  Harp.  411.  —  Ed. 

2  1  Kenj.  38  S.  C. 


SECT.  VI.]  EX   PARTE   BELCHIER.  517 

Lord  HARD-mcKE,  Chancellor,  after  argument  at  bar:  If  Mrs. 
Parsons  is  chargeable  in  this  case,  no  man  in  his  senses  would  act  as 
assignee  under  commissions  of  bankrupt.  This  court  has  laid  down  a 
rule  with  regard  to  the  transactions  of  assignees,  and  more  so  of  trus- 
tees, so  as  not  to  strike  a  terror  into  mankind  acting  for  the  benefit 
of  others,  and  not  for  their  own. 

Courts  of  law,  and  equity  too,  are  more  strict  as  to  executors  and 
administrators ;  but  where  trustees  act  by  other  hands,  either  from 
necessity,  or  conformable  to  the  common  usage  of  mankind,  they  are 
not  answerable  for  losses. 

There  are  two  sorts  of  necessities ;  1st,  Legal  necessity ;  2d,  Moral 
necessity. 

As  to  1st,  A  distinction  prevails  where  two  executors  join  in  giving 
a  discharge  for  money,  and  one  of  them  only  receives  it,  they  are  both 
answerable  for  it,  because  there  is  no  necessity  for  both  to  join  in  the 
discharge,  the  receipt  of  either  being  sufficient ;  but  if  trustees  join  in 
giving  a  discharge,  and  one  only  receives,  the  other  is  not  answerable, 
because  his  joining  in  the  discharge  was  necessary. 

2d,  Moral  necessity,  from  the  usage  of  mankind.  If  trustee  acts  as 
prudently  for  the  trust  as  for  herself,  and  according  to  the  usage  of 
business. 

If  trustee  appoints  rents  to  be  paid  to  a  banker  at  that  time  in 
credit,  and  the  banker  afterwards  breaks,  the  trustee  is  not  answer- 
able. 

So  in  the  employment  of  stewards  and  agents :  the  receiver  of  Lord 
Plymouth's  estate  took  bills  in  the  country  of  persons  who  at  the  time 
were  reputed  of  credit  and  substance,  in  order  to  return  the  rents  to 
London  :  the  bills  were  protested,  and  the  money  lost,  and  yet  the 
steward  was  excused.*  None  of  these  cases  are  on  account  of  neces- 
sity, but  because  the  persons  acted  in  the  usual  method  of  business. 

Objection  :  The  goods  were  in  a  warehouse,  l>ut  it  docs  not  appear 
the  broker  had  the  key  of  the  warehoii.se  ;  if  he  had,  lie  would  l)i;  tiien 
in  the  possession  of  the  goods ;  and  if  he  had  in  such  case  embezzled 
any  of  them,  Mrs.  Parsons  would  not  be  liable  for  hiicIi  loss.  If  she 
would  not  in  such  case  of  embezzlement,  no  more  ri'ascju  tliat  sho 
should  in  this  case. 

Objection  :   Mva.  Parsons  herself  might  have  rcci'ivi'd  tlio  money. 

It  is  not  usual  to  receive  the  money  one's  self;  n  (jucstion  fre»jUontly 
happens,  by  reason  of  bankruptcy,  as  to  goods,  which  arc  shipped  but 
rir)t  imported,  to  whom  they  belong.  In  those  cases,  this  cjmvl  gener- 
ally orders  the  goods  to  l)e  sold,  and  tin;  money  paid  into  the  l»Miik,  f<tr 
the  benefit  of  the  parties  wiio  shull  be  entitled  in  the  event.  But  yet 
the  broker  is  the  hand  to  receive  the  money  first. 

Objection  :  She  might  have  appointed  another  person  to  receive  it. 

The  answer  to  that  is,  Nil  ntjit  cxcmpfum,  quod  litem  lite  rcaolvit. 

>  3  Atk.  480. 


f>18  SPEIGHT   V.   GAUNT.  [CHAP.  V. 

Objection :  She  might  have  taken  security ;  but  to  do  that  upon 
everv  occasion  would  tend  greatly  to  the  hindrance  of  business. 

Therefore  of  opinion,  Mrs.  Parsons  ought  not  to  be  charged  with  the 
value  of  the  goods.  ^ 


SPEIGHT  V.   GAUNT. 
In  the  Court  of  Appeal,  January  19,  20,  1883. 

[Reported  in  22  Chancery  Division  Reports,  727.J 

This  was  an  appeal  from  a  decision  of  Bacon,  V.  C,  holding  the 
defendant,  who  was  an  executor  and  trustee  of  the  will  of  John 
Speight,  liable  to  replace  a  sum  of  £15,275,  part  of  the  trust  estate, 
which  had  been  lost  by  reason  of  the  default  of  oue  R.  E.  Cooke,  a 
stockbroker,  doing  business  at  Bradford. 

The  facts  were  briefly  as  follows :  There  being  a  sum  of  £15,000 
trust  money  on  deposit  at  the  bankers,  the  defendant  proposed  to 
invest  it  in  securities  of  the  corporations  of  Leeds,  Huddersfield,  and 
Halifax  —  securities  authorized  by  the  will  —  and  employed  Cooke  to 
obtain  £5,000  of  the  securities  of  each  corporation.  The  Leeds  corpo- 
ration issued  debentures  and  debenture  stock ;  the  two  latter  borrowed 
on  debentures  only. 

There  was  no  absolute  necessity  to  employ  a  broker  in  the  purchase 
of  the  securities. 

On  the  14th  of  February,  1881,  Cooke  called  on  the  defendant  and 
handed  him  a  paper,  which  purported  to  be  a  bought-note,  and  was  as 
follows:  "John  Cooke  &  Sou,  Exchange,  Bradford,  February  24, 
1881.  To  the  executors  of  the  late  John  Speight.  We  have  this  day 
bought  for  you  as  per  your  order,  subject  to  the  rules  of  the  London  Stock 
Exchange,  £5,000  Leeds  Corporation  debenture  stock  at  105^  com- 
mission, net  £5,275  ;  £5,000  Huddersfield  Corporation  ditto  ditto  at  100 
commission,  net  £5,000,  Halifax  Corporation  ditto  ditto  at  100  com- 
mission, net  £5,000:  total  £15,275  account.  Signed  John  Cooke  & 
Son." 

Cooke,  on  delivering  the  note,  said  that  the  payment  was  to  be  made 
the  next  day,  and  the  defendant  signed  three  cheques  for  the  total 
amount  to  Cooke's  order,  who  appropriated  them  to  his  own  use,  and 
on  the  28th  of  March  filed  a  liquidation  petition,  and  absconded.^ 

Jessel,  M.  R. — This  is  an  appeal  from  the  decision  of  Vice-Chan- 
cellor  Bacon  finding  the  defendant,  Mr.  Gaunt,  wlio  was  a  trustee, 
liable  to  make  good  some  £15,000  which  has  been  lost  through  the 

1  Ex  parte  Turner,  Mont.  &  M.  52;  Edmonds  v.  Peake,  7  Beav.  239  Accord.  —  Ed. 

2  The  statement  of  the  case  is  taken  from  52  L.  J.  Ch.  504.  The  arguments  are 
omitted  and  tlie  opinions  are  abridged.  —  Ed. 


SECT.  VI.]  SPEIGHT   V.   GAUNT.  519 

failure  of  the  stockbroker  employed  by  him  to  make  investments  on 
account  of  the  trust. 

The  questions  which  we  have  to  decide  are  important  not  only  on 
account  of  the  amount  in  dispute,  but  also  on  account  of  the  principles 
which  ought  to  govern  the  court  in  deciding  points  of  this  nature. 

In  the  first  place,  I  think  we  ought  to  consider  what  is  the  liability 
of  a  trustee  who  undertakes  an  office  which  requires  him  to  make  an 
investment  on  behalf  of  his  cestui  que  trust.  It  seems  to  me  that  on 
general  principles  a  trustee  ought  to  conduct  the  business  of  the  ti-ust 
in  the  same  manner  that  an  ordinary  prudent  man  of  business  would 
conduct  his  own,  and  that  beyond  that  there  is  no  liability  or  obligation 
on  the  trustee.  In  other  words  a  trustee  is  not  bound  because  he  is  a 
trustee  to  conduct  business  in  other  than  the  ordinary  and  usual  way 
in  which  similar  business  is  conducted  by  mankind  in  transactions  of 
their  own.  It  never  could  be  reasonable  to  make  a  trustee  adopt  fur- 
ther and  better  precautions  than  an  ordinary  prudent  man  of  business 
would  adopt,  or  to  conduct  the  business  in  any  other  way.  If  it  were 
otherwise,  no  one  would  be  a  trustee  at  all.  He  is  not  paid  for  it.  He 
says,  "  I  take  all  reasonable  precautions  and  all  the  precautions  which 
are  deemed  reasonable  by  prudent  men  of  business,  and  beyond  that  I 
am  not  required  to  go."  Now  what  are  the  usual  precautions  taken  by 
men  of  business  when  they  make  an  investment?  If  the  investment  is 
an  investment  made  on  the  Stock  Exchange  through  a  stockbroker,  the 
ordinary  course  of  business  is  for  the  investor  to  select  a  stockbroker 
in  good  credit  and  in  a  good  position,  having  regard  to  the  sum  to  be 
invested,  and  to  direct  him  to  make  the  investment,  —  that  is,  to  pur- 
chase on  the  Stock  Exchange  of  a  jobber  or  another  bruker  the  invost- 
ment  required.  In  the  ordinary  course,  all  that  the  broker  can  do  is 
to  enter  into  a  contract,  —  usually  it  is  for  the  next  account-day.  Of 
course  you  may,  by  special  bargain,  make  it  for  cash  or  for  any  other 
day,  but  the  ordinary  course  is  for  the  next  account-day.  Hi-fore  the 
account-day  arrives  the  purchasing  stockbroker  recjucsts  his  priii('ii)al 
to  pay  him  the  money,  because  on  the  account-day  ho  is  himsulf  liable 
to  pay  over  the  money  to  the  vendor,  whether  a  jobber  or  broker,  and 
therefore  be  must  have  it  ready  for  the  account-day,  and  according  to 
the  usual  course  of  business  he  sends  a  coi>y  of  the  purchasing  note  to 
the  principal  stating  when  the  money  is  rf(iuinMl  to  be;  paid,  and  ho 
obtains  the  money  from  him  a  day  (;r  two  before  the  account-day. 
When  he  gets  it  he  pays  it  over,  if  it  is  a  single  transaction,  to  the 
vendor,  and  if  it  is  one  of  a  number  of  transactions  he  makes  out  an 
account  with  his  vendor  and  pays  over  or  receives  fronj  him  the  bal- 
ance on  tlie  transactions.  It  by  no  means  follows,  thert^fort",  that  ho 
pays  over  to  the  vendor  the  sum  received,  indeed  there  ni.iy  be  a  ninn- 
ber  of  transactions,  and  if  the  balance  is  the  other  way,  then  he  has  to 
receive  money  on  the  account,  but  he  must  in  any  case  have  the 
money  in  order  to  keep  himself  out  of  cash  advances.  It  is  after  pay- 
ment, and  very  often  a  considerable  time  after  payment,  that  is,  several 


ro 


20  SPEIGHT   V.   GAUNT.  [CHAP.  V. 

da^'S,  that  be  gets  the  securities  perfected.  If  they  are  shares  or  stock 
in  a  company  or  railway  or  other  company,  it  may  be  a  considerable 
time  before  the  transfers  are  lodged  at  the  ollice,  and  it  is  not  until  the 
matter  is  ready  for  completion  that  he  gets  the  transfer  and  the  certifi- 
cates. But  in  all  cases,  except  in  the  case  of  consols  and  a  few  other 
such  stocks,  there  is  some  interval  between  the  payment  of  the  pur- 
chase-money and  the  obtaining  of  the  security,  or  of  the  investment 
purchased. 

If,  therefore,  a  trustee  has  made  a  proper  selection  of  a  broker,  and 
has  paid  him  the  money  ou  the  bought-note,  and,  by  reason  of  the 
default  of  the  broker  the  money  is  lost,  it  does  not  appear  to  me  in 
that  case  that  the  trustee  can  be  liable.  Indeed  it  was  not  argued  in 
this  court  that  he  would  be  liable,  and  I  have  said  what  1  have  said 
upon  the  subject  more  on  account  of  an  observation  reported  to  have 
been  made  by  Vice-Chancellor  Bacon  in  the  court  below,  than  because 
of  any  argument  that  was  addressed  to  us  upon  the  point. 

Having  said  what  I  have  said  on  the  general  principle,  I  think  it 
right  to  call  attention  to  the  authorities  upon  the  subject,  in  order  to 
show  that  I  have  given  the  fair  result  of  the  authorities  as  they  stand. 
There  is,  in  the  first  instance,  the  case  of  Ex  parte  Belchier.  It  was 
before  Lord  Hardwicke,  and  it  is  the  leading  case  upon  the  subject. 
Thei-e  it  was  the  assignee  of  a  bankrupt,  but  the  same  principle  applies 
to  the  assignee  of  a  bankrupt  as  to  a  trustee.  A  large  quantity  of 
tobacco  belonged  to  a  bankrupt,  and  the  assignee  employed  a  broker 
to  sell  it,  the  money  was  paid  to  the  broker,  and  ten  days  afterwards 
he  died  insolvent.  The  commissioners  fixed  the  assignee  with  the  loss. 
He  appealed  to  Lord  Hardwicke,  and  it  was  proved  that  it  was  the 
common  practice  to  sell  mercantile  goods  by  auction,  and  to  employ  a 
broker,  and  for  him  to  receive  the  money.  That  was  the  ordinary 
course  of  business.  It  would  be  the  same  thing  if  a  trustee  sold  goods 
by  auction,  the  auctioneer  would  receive  the  money,  and  as  regards 
certain  transactions  an  auctioneer  is  called  a  broker.  Lord  Hardwicke 
says:  "If  Mrs.  Parsons  is  chargeable  in  this  case,  no  man  in  his 
senses  would  act  as  assignee  under  commission  of  a  bankrupt.  This 
court  has  laid  down  a  rule  with  regard  to  the  transactions  of  assignees, 
and  more  so  of  trustees,  so  as  not  to  strike  a  terror  into  mankind  act- 
ing for  the  benefit  of  others,  and  not  for  their  own."  He  says,  "  not 
to  strike  a  terror  into  mankind  "  —  it  is  rather  rhetorical,  but  he  means 
not  to  discourage  respectable  people  from  accepting  the  office  of 
trustee.  Then  he  says :  "  Courts  of  law,  and  equity  too,  are  more 
strict  as  to  executors  and  administrators."  I  must  say  I  do  not  concur 
with  this  observation.  I  think  in  modern  times  the  courts  have  not 
distinguished  between  assignees,  executors,  and  trustees,  but  they  have 
put  them  all  together  and  considered  that  they  are  all  liable  under  the 
same  principles,  but  that  is  only  a  bye  point.  Then  Lord  Hardwicke 
goes  on  to  say  :  "  But  where  trustees  act  by  other  hands,  either  from 
necessity  or  conformably  to  the  common  usage  of  mankind,  they  are 


SECT.  VI.]  SPEIGHT   V.    GAUNT.  521 

not  answerable  for  losses."     That  of  course  means  where  they  act  by 
other  hands  and  properly  choose  the  hand  by  which  they  act.     Now 
what  is  meant  by  "  either  by  necessity  or  conformably  to  the  common 
usage  of  mankind  "  ?     It  means  where  in  the  ordinary  course  of  busi- 
ness transactions,  an  agent  is  employed.     A  gentleman,  for  instance, 
who  has  rents  to  collect  as  a  rule  employs  a  rent  collector.     He  miglrt 
go  round  himself  and  collect  them,  but  he  does  not  do  so.     It  is  the 
common  usage  of  mankind  in  such  a  case  to  employ  an  ageut  to  do  it.^ 
So  a  man  who  buys  stock  on  a  Stock  Exchange  employs  a  stockbroker, 
and  there  it  is  absolutely  necessary  for  him  to  do  so ;  he  cannot  buy 
himself,  but  even  if  he  could  it  is  usual  to  employ  a  stockbroker. 
Then  Lord  Hardwicke  goes  on:  "Secondly  —  moral  necessity,  from 
the  usage  of  mankind.     If  a  trustee  acts  as  prudently  for  the  trust  as 
for  herself  and   according  to  the  usage  of   business.      If  a  trustee 
appoints  rents  to  be  paid  to  a  banker  at  that  time  in  credit,  and  the 
banker  afterwards  breaks,  the  trustee  is  not  answerable.     So  in  the 
employment  of  stewards  and  agents ;  the  receiver  of  Lord  Plymouth's 
estate  took   bills  in  tbe  country,   of   persons  who  at  the  time  were 
reputed  to  be  of  credit  and  substance  in  order  to  return  the  rents  to 
London.     The  bills  were  protested  and  the  money  lost,  and  yet  the 
steward  was  excused.     None  of  these  cases  were  on  account  of  neces- 
sity, but  because  the  persons  acted  in  the  usual  method  of  business." 
Then  he  answers  a  little  further  down  the  objection  that  Mrs.  Parsons 
herself  might  have  received  the  money.     Tlie  answer  is  that  it  is  not 
usual  to  receive  the  money  one's  self.    Then  he  says  :  "  A  question  fre- 
quently happens  by  reason  of  bankruptcy  as  to  goods,  whicli  are  shipped 
but  not  imported,  to  whom   tliey  l)el()ng.     In  those  cases  tliis  court 
generally  orders  tlie  goods  to  be   sold  and   the  money  paid   into  the 
bank,  for  the  benefit  of  the  parties  who  shall  be  entitled  in  the  event. 
But  yet  the  broker  is  the  hand  to  receive  the  money  first."     Then  there 
was  an  objection  that  "she  might  have  taken  security,  but  to  do  that 
on  every  occasion  would  tend  greatly  to  the  hindrance  of  business." 
That  seems  to  me  to  go  the  wliole  length  we  arc  reijuired  to  go  lu<ro, 
and  to  estal^lish  the  general  principle.  .  .   ."^ 

1  now  come  to  the  point  upon  which  the  case  was  decided  and  on 
•which  it  was  argued  before  us.  I  must  say  as  I  read  the  plradimrs 
that  the  law  is  stated  in  conformity  willi  tliat  wiiicli  I  liavg  been  hiving 
down.  Tlie  accusation  against  the  trustee  is  one  of  negligence.  It  Sa 
called  "  gross  negligence;  "  that  docs  not  matter,  negligence  is  tho 
•harge  made  against  tlie  trustee,  and  the  question  is  wlietlier  he  has 
been  guilty  of  negligence. 

My   view   has   always    been   tliis,   that    where   you    have  an   honest 

1  The  trtifltocB*  employmont  of  an  ngent  for  collection  wiw  approved  m  rcai»onnl>lo 
in  Tn  TP  Rriff,  2f>  Ch.  T)iv.  238— En. 

2  The  MafttfT  of  tho  Kolls  hc-ro  ilincuwied  with  approval  fho  cnMex  of  Ilacon  r. 
Bacon,  5  Ves.  3.31  ;  Joy  v.  Campbell,  1  Sch.  &  Lef.  328;  Clough  v.  Bond,  3  My.  & 
Cr.  490. 


522  SPEIGHT   V.   GAUNT.  [CIIAP.  V. 

trustee  fairly  nnxious  to  perform  his  diit}^  and  to  do  as  he  thinks  best 
for  the  estate,  you  are  not  to  strain  tlie  law  aQ;ainst  him  to  make  him 
liable  for  doing  that  which  ho  has  done  and  which  lie  believes  is  right 
in  the  execution  of  his  duty,  without  you  have  a  plain  case  made  against 
him.  In  other  words,  j^ou  are  not  to  exercise  your  ingenuity,  which  it 
appears  to  me  the  Vice-Chancellor  has  done,  for  the  purpose  of  finding 
reasons  for  fixing  a  trustee  with  liability ;  but  you  are  rather  to  avoid 
all  such  hypercriticism  of  documents  and  acts  and  to  give  the  trustee  the 
benefit  of  any  doubt  or  ambiguity  which  may  appear  in  any  document, 
80  as  to  relieve  him  from  the  liability  with  which  it  is  sought  to  fix  him. 

There  is  no  allegation  in  the  statement  of  claim,  although  it  has  been 
argued,  that  Mr.  Gaunt  ought  not  to  have  employed  a  broker.  I  dis- 
miss that  argument  at  once.  It  is  quite  plain  that  he  was  entitled  to 
employ  a  broker  in  the  ordinary  course  of  business,  whether  the  pur- 
chase was  on  the  Stock  Exchange,  or  whether  the  securities  were  to  be 
obtained  from  the  corporation.  The  advertisements  not  only  autho- 
rized the  employment  of  a  broker,  but  offered  to  pay  the  brokerage, 
and  there  was  no  occasion  for  a  gentleman  who  was  a  trustee  to  do 
that  himself  which  might  properly  in  the  ordinary  course  of  business 
be  done  by  another,  and  especially  where  the  cost  of  employing  that 
other  would  not  fall  on  the  trust  estate.  I  think,  therefore,  that  he 
was  entitled  to  employ  a  broker  even  if  he  could  have  obtained  the 
securities  from  the  corporations  direct. 

It  was  said  that  it  was  the  duty  of  Mr.  Gaunt  to  pay  the  money 
direct  to  the  bankers  of  the  corporation,  or  at  all  events  to  make  the 
cheque  payable  to  th©  order  of  the  corporation.  If  it  is  to  be 
assumed  against  him  that  he  knew  the  stocks  were  to  be  acquired 
from  the  corporations  direct,  I  do  not  say  whether  or  not  he  ought  to 
have  paid  the  broker.  I  reserve  my  opinion  upon  that  question.  If  it 
were  not  so,  if  he  had  neither  notice  nor  knowledge  that  the  stocks  were 
to  be  procured  otherwise  than  on  the  Stock  Exchange,  then  I  think  the 
argument  that  he  might  have  paid  it  through  the  bankers  falls  to  the 
ground.  In  the  first  place,  as  I  said  before,  the  usual  custom  is  to  pay 
your  broker,  and  in  the  next  place  it  by  no  means  follows  that  the  money 
would  ever  have  reached  the  vendor ;  and,  indeed,  in  the  case  where  the 
purchase  is  in  London,  I  suppose  it  would  go  to  a  London  broker,  so 
that  I  cannot^  see  either  according  to  the  ordinary  course  of  business  or 
according  to  any  possible  mode  of  conducting  business  you  could  pay 
otherwise.  It  seems  to  me,  therefore,  that  if  you  once  arrive  at  the 
conclusion  that  Mr.  Gaunt  was  uninformed  by  the  bought-note  that 
the  purchase  had  been  made  in  that  way,  there  was  no  obligation  on  him 
to  make  any  further  inquiry.  He  trusted  his  broker,  and  he  was  not 
bound  to  ask  the  broker  whether  he  had  written  a  falsehood,  whether 
he  had  really  entered  into  a  contract  or  not.  The  man  told  him  in 
writing  that  he  had,  and  he  was  entitled  to  trust  him ;  and,  as  it  seems 
to  me,  there  was  no  obligation  on  him  to  make  any  further  inquiry. 

For  these  reasons  it  appears  to  me  that  the  decision  of  the  court 
below  ought  not  to  be  affirmed. 


SECT.  VI.]  SPEIGHT   V.   GAUNT.  523 

LiNDLEY,  L.  J.  —  The  real  importance  of  this  case  is,  that  it  lies 
between  these  two  propositions,  —  that  a  trustee  cannot  delegate  his 
trust,  and  that  on  the  other  hand,  he  is  entitled  to  employ  persons  to  do 
that  which  an  ordinary  man  of  business  would  employ  an  agent  to  do. 
Now,  looking  at  the  matter  fairly  and  properly  as  a  business  man  would 
look  at  it,  can  it  be  said  to  be  an  improper  thing  on  the  part  of  a  trustee 
who  is  desirous  of  investing  £15,000  in  this  class  of  securities  to  go  to  a 
broker?  That  he  might  have  acted  otherwise  is  plain  enough;  but  was 
it  a  reasonable  and  proper  thing  not  to  apply  to  the  secretaries  or 
treasurers  of  these  corporations,  but  to  employ  a  broker  for  tliat  pur- 
pose ?  So  far  as  the  evidence  goes,  it  appears  to  me  that  on  the  bal- 
ance of  the  evidence  it  is  impossible  to  say  that  this  was  an  improper 
step  for  a  trustee  to  take.  Although  business  men  can  do  these  things 
for  themselves,  unless  we  can  go  the  length  of  saying  that  the  employ- 
ment of  Mr.  Cooke  was  an  improper  delegation  of  the  trust  or  an 
improper  employment,  it  will  follow  that  it  was  not  an  unreasonable 
thing  or  a  breach  of  trust  to  employ  a  broker  to  do  this  kind  of  work ; 
and  the  conclusion  that  I  have  arrived  at  on  that  point  is  that  we 
cannot  say  the  trustee,  acting  honestly,  was  not  entitled  to  employ  a 
broker  to  do  this  kind  of  business. 

Now,  assuming  that  the  trustee  was  justified  in  employing  Mr. 
Cooke,  and  assuming  that  he  was  not  negligent  in  not  having  his  sus- 
picions aroused  when  this  document  was  brought  to  iiim,  the  next 
question  is,  was  he  acting  improperly  in  paying  the  purchase-money 
to  the  broker?  That  is  to  say,  ought  he,  as  a  prudent  man  of  business, 
to  have  paid  it  to  somebody  else,  namely,  to  the  principals  from  whom 
the  l)roker  ou'jlit  to  have  got,  but  did  not  get,  these  seeuritii's,  whi'ther 
upon  the  Stock  Exchange  or  otherwise?  If  the  trustee  hud  notice,  and 
really  did  know  tliat  these  things  liad  not  been  bougiit  on  the  Stock 
Exchange,  it  is  quite  possible  that  he  ought  so  to  liave  paid  it.  I  say 
nothing  about  tliat.  It  might  be  that  in  tiiat  case  tlje  trustee  would  be 
bound  to  see  furtlior  into  tlie  application  of  the  money;  but,  misled  as 
he  was,  and  entitled  as  he  was  to  treat  tlu-se  things  as  bought  by  the 
broker  in  the  ordinary  way  of  his  liusiness  as  a  broker  on  the  Stock 
Excliango,  it  appears  to  me  that  it  is  perfectly  impossible  to  Imld  that 
he  was  Itoinid  to  see  to  tlie  application  of  the  money,  in  the  sense  that 
he  was  bound  to  pay  the  persons  with  wliom  the  l»roker  negcjtinted  the 
pureliase.  W'e  know  the  way  in  which  business  is  done  through 
brokers  in  buying  ordinary  stock.  If  a  broker  buys  £10, 000  of  stock 
there  are  sometimes  half  a  dozen  people  fiom  whom  he  gels  the  stock. 
It  is  not  in  the  ordinary  course  of  busineHs  for  a  buyer,  whether  a 
trustee  or  not,  to  jiay  to  persons  from  whom  the  broker  has  bouglit; 
he  pays  tiie  broker.  lie  is  entitled  to  do  that  by  the  ordinary  j-oiirsc 
of  business.  I  do  not  myself  understand  that  there  is  any  evidence 
that,  in  point  of  fact,  a  trustee  or  any  other  person  cm|»loying  a  ltn»ker 
to  buy  could  do  it  in  any  other  way.  As  a  matter  of  busincHs  I  believe 
he  could  not.      At  all  event,'*,  the  evidence  is  conclusive  that  the  ordi- 


524  SPEIGHT   V.    GAUNT.  [CIIAP.  V. 

• 

nary  practice  in  employing  a  broker  on  such  occasions  Is  to  send  a 
cheque  to  the  broker.  There  was,  therefore,  no  negligence  in  Mr. 
Gaunt  doing  so;  there  was  no  impropriety  or  breach  of  trust  iu  his 
conduct  up  to  this  point. 

Now,  I  do  not  propose  to  go  through  the  authorities,  but  I  will 
advert  to  two  cases,  because  they  have  been  brouglit  to  the  attention 
of  the  court  and  they  require  notice.  One  is  Bostock  v.  Floyer,  in 
which  Lord  Romilly  held  that  a  man  was  responsible  for  the  sum  of 
£400  which  he  had  given  to  his  solicitor  to  invest.  The  solicitor  had 
pretended  to  invest  it  on  a  mortgage  of  some  copyholds,  but  he  had 
not  done  so,  and  the  money  was  lost,  and  the  trustee  was  held  respon- 
sible. As  I  understand  it  the  ratio  decidendi  of  the  case  was  this,  that 
it  was  not  the  ordinary  course  of  business  for  a  trustee  to  place  money 
in  the  hands  of  a  solicitor  to  invest.  It  was  not  a  specific  investment, 
it  was  handed  to  the  solicitor,  and  in  that  point  of  view  the  case  is 
intelligible  enough  upon  the  ground  that  it  was  not  right  for  the  trustee 
to  hand  over  the  money  to  the  solicitor  for  the  purpose  of  investment. 
The  other  case  was  Hopgood  v.  Parkin,^  cited  by  Mr.  Millar.  That 
case  certainly  goes  much  further  than  I  should  have  thought  right ; 
but  in  the  result  the  case  was  appealed.  An  infant  was  concerned, 
and  the  Court  of  Appeal  sanctioned  a  compromise  on  behalf  of  the 
infant. 

I  wish  most  emphatically  to  say  that  if  trustees  are  justified  by  the 
ordinary  course  of  business  in  employing  agents,  and  they  do  employ 
agents  in  good  repute  and  whose  fitness  they  have  no  reason  to  doubt, 
and  employ  those  agents  to  do  that  which  is  in  the  ordinary  course  of 
their  business,  I  protest  against  the  notion  that  the  trustees  guarantee 
the  solvency  or  honesty  of  the  agents  employed.  Such  a  doctrine 
would  make  it  impossible  for  any  man  to  have  anything  to  do  with  a 
trust.  I  differ  from  the  Vice-Chancellor  upon  the  question  of  fact :  the 
principles  of  law,  which  he  stated  in  the  first  part  of  his  judgment  are 
entirely  sound,  but  I  differ  from  the  conclusion  at  which  he  arrived  on 
the  bought-note,  and  so  differing  from  him  I  cannot  agree  with  the 
judgment  which  he  pronounced. 

BowEN,  L.  J.  —  This  is  a  case  of  the  greatest  possible  importance, 
and  I  think  it  right,  therefore,  to  add  my  own  expression  of  opinion  to 
the  judgments  which  have  been  already  given,  not  merely  because  of 
the  importance  of  the  case,  but  because  during  a  portion  of  the  argu- 
ments I  certainly  did  not  feel  quite  so  clear  as  the  rest  of  the  court 
appeared  to  do,  —  not  as  to  the  law,  which  has  throughout  been  ad- 
mitted on  all  sides  to  be  open  to  no  doubt,  but  as  to  the  correct  infer- 
ence from  one  particular  point  to  be  drawn  by  the  tribunal  that  has  to 
decide  the  case.  However,  I  have  come  to  a  decided  opinion  about  the 
matter,  and  as  I  have  done  so  I  think  it  is  as  well  that  I  should  express 
fully  what  that  opinion  is. 

1  Law  Rep.  1 1  Eq.  74. 


SECT.  VL]  SPEIGHT  V.   GAUNT.  525 

Now,  with  regard  to  the  law  it  is  clear  that  a  trustee  is  only  bound 
to  conduct  the  business  of  the  trust  in  such  a  way  as  an  ordinary  pru- 
dent man  of  business  would  conduct  his  own.  I  agree  with  what  was 
said  by  the  Master  of  the  Rolls  in  the  opening  part  of  his  judgment, 
and  the  cases  which  he  has  cited  seem  to  me  to  be  conclusive  upon  the 
point.  The  truth  is  that  the  law  upon  the  subject  is  clear,  because  it  is 
based  upon  common  sense.  A  trustee  cannot,  as  everybody  admits, 
delegate  his  trust.  If  confidence  has  been  reposed  in  him  by  a  dead 
man  he  cannot  throw  upou  the  shoulders  of  somebody  else  that 
which  has  been  placed  upon  his  own  shoulders.  On  the  other  hand, 
in  the  administration  of  a  trust  a  trustee  cannot  do  everything  himself, 
—  he  must  to  a  certain  extent  make  use  of  the  arms,  legs,  eyes,  and 
hands  of  other  persons,  and  the  limit  within  which  it  seems  to  me  he 
is  confined  has  been  described  throughout,  both  in  the  cases  which 
have  been  referred  to  and  the  judgments  which  have  preceded  me,  to 
be  this :  that  a  trustee  may  follow  the  ordinary  course  of  business, 
provided  he  runs  no  needless  risk  in  doing  so.  That  is  in  substance 
what  was  laid  down  in  the  case  before  Lord  Hardwicke  of  Ex  parte 
Belchier.  Lord  Hardwicke's  view,  putting  aside  peculiarities  of  lan- 
guage, is  based  upon  reason  and  common  sense.  In  other  words  a 
trustee  may  not  employ  an  agent  where  he  should  do  the  work  himself ; 
but  he  may  employ  an  agent  where  there  is  a  moral  necessity,  adopting 
the  form  of  expression  used  in  that  case,  that  he  should  use  the  instru- 
mentality of  others,  that  is  to  say,  he  may  use  others  if  it  is  in  the  ordi- 
nary course  of  business  to  use  others,  and  if  he  runs  no  needless  risk 
in  doing  so.  A  similar  sort  of  test  is  applied  every  day  by  comniorcial 
men  in  the  business  world  to  transactions  which  are  carried  on  tlu'ouirh 
agents.  A  contract  of  agency,  a  contract  which  a  man  makes  with 
his  agent  when  he  commits  anything  to  his  hands  is  to  a  certain  extent 
a  personal  one,  and  to  the  extent  to  which  it  is  a  personal  one  it  cannot 
be  delegated;  but  everylxxly  knows  tliat  notliiiig  is  more  oomnion,  — 
nothing  is  more  certain  than  that  a  large  portion  of  commercial  l»nsi- 
ness  is  performed  through  sub-agents.  It  is  entrusted  to  the  hands 
of  an  agent,  not  to  do  it  himself,  but  to  get  it  done,  and  in  that 
class  of  cases,  provided  the  agent  chooses  carefully  the  sub-agent,  lio 
really  discharges  tiic  functions  he  is  oniployc*!  to  dischargo,  and  the 
proposition  as  to  trustees  or  agents,  that  they  cannot  delegate,  means 
this  simply :  that  a  man  employed  to  do  a  tiling  liimself  has  not  the 
right  to  get  somebody  else  to  do  it,  but  when  he  is  employcfl  to  get  it 
done  through  others  he  may  do  so.  Now,  applying  that  sort  of  reason- 
ing to  the  present  case,  T  begin  with  this,  that  a  trustee  wh<>  employs  a 
broker  to  buy  in  the  ordinary  course  of  business  on  the  Stock  Kx- 
change  is  justified  in  employing  and  in  paying  money  to  the  broker 
whom  he  has  employed.  I  fail  to  sec  what  a  trustee  could  be  expected 
to  do  different.  When  the  time  comes  for  the  completion  of  the  pur- 
chase, the  broker  wants  the  money,  and  tire  payment  to  the  broker  is 
therefore  one  of  the  means  of  effectuating  the  couipletion  of  the  pur* 


526  SrEIGIIT   V.   GAUNT.  [CIIAP.  V. 

chase.      It  is  -wanted  for  that  purpose.     There  is  a  moral  necessity 
for  it. 

The  first  question  argiied  in  the  case  was  whether  Mr.  Gaunt  was 
entitled  to  employ  a  broker  at  all.  I  answer  the  question  aflirniatively 
in  favor  of  Mr.  Gaunt.  I  think  it  was  a  sensible  thing  for  Mr.  Gaunt 
to  employ  a  broker.  As  to  the  choice  of  a  broker  I  need  not  say  any- 
thing. Enough  has  been  said  about  that.  But  that  does  not  exhaust 
of  course  the  points  we  have  to  decide.  Assuming  that  Mr.  Gaunt  was 
right  in  employing  a  broker,  was  he  right  in  paying  over  so  large  a  sum 
as  £15,000  to  him?  Now  a  payment  of  that  sort  would  be  wise  or 
unwise,  I  should  say,  according  to  whether  there  existed  or  did  not 
exist  a  reasonable  necessity  for  it,  having  regard  to  the  ordinary  course 
of  business.  If  it  was  a  transaction  on  the  Stock  Exchange,  as  I  have 
said,  and  the  money  was  wanted  to  complete  the  transaction,  I  think 
the  trustee,  Mr.  Gaunt,  would  have  been  justified  in  paying  it  to  hia 
broker.  If  the  purchase  of  the  broker  was  made  direct  from  the  cor- 
poration I  am  by  no  means  so  clear,  and  I  feel  even  more  doubts,  if  I 
may  say  so,  than  my  brothers  who  have  preceded  me  on  that  point.  If 
there  had  been  no  practical  necessity  for  paying  the  broker  it  would  be 
a  large  sum  to  pay  him,  and  I  cannot  myself  see  that  it  is  made  out 
that  such  a  course  would  be  conformable  to  the  ordinary  usage  of  man- 
kind in  tiie  sense  in  which  those  words  are  used  by  Lord  Hardwicke 
and  in  other  cases.  I  should  feel  the  greatest  doubt  whether  Mr. 
Gaunt  would  be  justified  in  paying  a  broker  on  the  market  if  the 
broker  made  the  purchase  direct  from  the  corporation,  and  that  was 
understood  to  be  the  bargain.  But  the  question  whether  the  pay- 
ment was  right  or  wrong  depending  on  the  nature  of  the  transaction, 
bow  was  Mr.  Gaunt  to  know  the  nature  of  the  transaction  ?  He  could 
only  find  it  out  fi'om  the  broker  himself.  He  could  not  walk  into  the 
market  and  ask  the  persons  with  whom  Mr.  Cooke  might  be  supposed 
to  be  dealing  whether  it  was  true  or  not  that  Mr.  Cooke  had  made  a 
bargain  with  them,  nor  could  he  be  expected  to  write  to  the  corpora- 
tion in  the  first  instance  to  know  whether  he  was  justified  in  trusting 
his  own  broker.  Of  course  he  was  justified  in  trusting  his  own  broker 
on  that  point  just  as  much  as  on  the  other  points  which  have  been  dis- 
cussed. I  do  not  see  what  he  could  have  done  otherwise.  If  that  is 
80  the  question  we  have  to  answer  in  this  case  is  narrowed.  It  really 
resolves  itself  into  this,  was  Mr.  Gaunt  informed  by  the  broker  in 
effect  that  the  transaction  which  had  been  completed  was  a  transaction 
of  purchase  and  sale  upon  the  Stock  Exchange  in  such  a  way  that  Mr. 
Gaunt  was  justified  in  believing  it?  Now,  the  oral  evidence  in  the  case 
certainly  does  not  show  that  Mr.  Gaunt  had  any  reason  to  doubt  that 
this  was  an  ordinary  Stock  Exchange  transaction.  But  I  do  not  my- 
self rest  very  much  upon  the  oral  evidence,  for  Mr.  Gaunt  was  the 
only  person  called  on  this  question,  and  it  may  not  be  right  to  adopt 
the  account  he  has  given  in  his  own  favor  of  the  conversation  as 
minutely  as  if  it  were  the  language  of  a  marriage  settlement.     But  at 


SECT.  VI.]  SPEIGHT   V.   GAUNT.  527 

any  rate  I  see  nothing  in  that  evidence,  and  I  have  looked  most  care- 
fully into  it,  to  help  the  plaintiffs.  There  is  nothing  in  it  to  show  that 
Mr.  Gaunt  was  informed  that  this  was  a  purchase  direct  from  the 
corporation. 

With  regard  to  what  has  been  said  as  to  the  cases  of  Bostock  v. 
Floyer  and  Hopgood  i'.  Parkin,^  referred  to  by  Lord  Justice  Lindley, 
I  entirely  agree  with  him,  and  also  with  what  has  been  said  by  the 
Master  of  the  Rolls  as  to  the  subsequent  alleged  default  in  not  requir- 
ing an  explanation  from  Mr.  Cooke  of  the  delay  which  occurred  after 
the  money  had  once  been  paid.*^ 

^  Law  Rep.  11  Eq.  74. 

2  Affirmed  in  the  House  of  Lords,  9  App.  Cas.  1.  Tlie  following  extract  from 
Lord  Selborne's  opinion  is  significant :  — 

"Thinking,  therefore,  that  the  employment  of  Cooke  as  a  broker  in  this  ca.'^e, 
under  the  instructions  actually  given  to  him,  was  proper,  and  not  inconsistent  with  the 
duty  of  the  respondent  as  trustee,  the  next  subject  of  incjuiry  is,  whether  it  was  a  just 
and  proper  consequence  of  that  em])loyment,  according  to  the  principle  of  Ex  parte 
Belchier,  Amb.  218,  that  the  trust  money  should  pass  through  his  hands. 

"  Upon  this  point  I  must  first  observe,  that  the  case  appears  to  me  to  be  different, 
from  what  it  would  have  been  if  Cooke  had  entered  into  contracts  with  the  several 
corporations  for  direct  loans  to  tliem  by  the  respondent,  and  had  reported  to  the  respon- 
dent that  he  had  done  so.  The  agency  of  a  broker,  as  such,  is  not  required  to  enter 
into  a  contract  of  that  kind  ;  and  if  the  agency  of  a  person  who  hajipens  to  be  a 
broker  is,  in  fact,  employed  to  do  so,  I  do  not  perceive  why  the  consequences  should 
be  different  from  what  tliey  would  be  if  a  solicitor  or  any  other  person  had  l)een  em- 
ployed. The  transaction  could  not  be  governed  by  the  rules  or  usage  of  the  London 
or  any  oth«r  exchange.  There  would  be  no  moral  necessity,  or  sufficient  practical 
rea.son,  from  the  usage  of  mankind  or  otherwise,  for  payment  of  the  money  to  tlie 
agent;  there  would  be  no  difficulty  or  im])ediment,  arising  from  the  usual  course  of 
such  business,  in  the  way  of  its  pa.«sing  direct  from  the  lender  to  the  borrower,  in 
exchange  for  the  securities;  and  if  it  should  be  found  convenient  to  .send  it  by  tlio 
nand  of  a  broker,  or  of  any  other  messenger  or  agent,  this  might  lie  done  by  a  che(|UO 
made  payable  to  the  borrower  or  his  order,  and  crossetl,  :us  is  usual  in  direct  dealings 
between  vendor  and  purchaser,  debtor  and  creditor,  wlien  jiayments  of  consideraldo 
amount  have  to  bo  made.  I  think  it  right  not  to  withhold  the  expression  of  my 
opinion,  that  such  a  case  would  fall  witliin  tlu>  principle  of  Howland  r.  \VitluT(Icn, 
3  Mac.  &  a.  ."JBS,  574,  and  Floyer  v.  IJo.stuck,  :).'>  Heav.  0O3.  COO,  rather  tlian  that  of 
Er  parte  Belchier.  On  this  subject  I  find  myself  in  agreement  with  Rowen,  L.  J. ; 
nor  do  I  infer,  from  the  judgments  of  Lindley,  L.  J.,  and  Sir  George  Jessd,  that  cither 
of  them  thought  otherwise." 

Lord  Hlackbnrn  declined  to  commit  himself  on  the  propriety  of  a  payment  to  the 
broker  in  the  sujiposed  rasa  that  the  trustee  knew  that  tlio  securities  were  Ixiught,  not 
in  the  Stock  Kxchange,  but  direct  from  tlio  rorpnrntion. 

The  dortrino  of  Speight  v.  Gaunt  lias  ticen  approved  in  pubscqucnt  cases.  Bnllock 
r.  Bullock,  ."J.-i  Jj.  T.  Rep  70.1. 

Siniibirly,  delivery  of  money  by  a  tmstco  to  a  solicitor  to  pay  into  court  is  lawful, 
since  a  solicitor  is  the  proper  person  to  make  such  payment.  Mitchell  v.  Mitchell,  .')2 
L.  T.  Rep.  178  {urmhU).  The  trustee  was  in  fact  luM  nnswemble  for  miscon<luct  <>f 
solicitor  because  he  was  negligent  in  making  inquiries  as  to  the  due  deposit  of  the 
money  by  the  solicitor.  —  "Ev- 


LAW  LTRRARY 

UKIVERalTY  OF  CALIFORNIA 

LOS  ANGELES 


TY 


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